People are more active when the weather gets warm. They participate in more sports and recreational activities. Do you have the right type and amount of insurance to be well protected against all of the things that can go wrong?
During the winter there are not as many boats out on the lakes and waterways. When summer comes around, the level of recreational boating increases exponentially. If you own a boat or a jet ski and are planning on taking it out of storage and into the water, you need to buy insurance. You pretty much have all of the same risks when you operate a boat as you have when you operate a car. If you run your boat into a pier, insurance can cover the repairs. If your boat is stolen you will not suffer a huge financial loss. Most importantly, a boat insurance policy can cover valid liability claims should you cause property damage or personal injury to another person while operating your boat.
When the weather is good and the kids are out of school, people tend to drive more. They go to amusement parks, the beach and on family vacations. The roads are more crowded and you may want to have more than your state’s minimum required amount of automobile insurance. If you don’t already have it, consider adding collision, comprehensive, roadside service, towing, and rental car reimbursement to your auto policy.
People get more active when the weather is warm. Whether you are out surfing, playing soccer, hiking, or riding a bike, you could fall and get injured. If you break an arm or need medical attention for some other reason, it is important to make sure that you are covered by medical insurance.
Most summer activities are just fun and work out just fine. However, for those cases when the unexpected happens, you will be glad you bought insurance.
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Norma is an assistant manager at a video store. After feeling very sick for a couple of days, she goes to the doctor and is diagnosed with strep throat. Since her employer provides sick time benefits, she calls the store manager and tells him she cannot work that day. He dismisses her illness as “just a sore throat” and orders her to report for work. She complies, but the strep infection takes most of a week to go away because she could not rest. On the third day, she calls in sick again, despite the manager’s obvious displeasure. Six weeks later, the manager terminates her employment, citing declining sales as the reason. Norma believes otherwise and files a complaint with the U.S. Equal Employment Opportunity Commission.
Since the great recession began in late 2007, complaints like this have become common. The EEOC reported that it received almost 100,000 job bias complaints in 2010, a new record. More than a third of them were from employees who felt their employers retaliated against them; another third were race discrimination claims. Why is this happening? Employment law experts believe the recession has a lot to do with it, as dismissed employees have had trouble finding new jobs. They also believe the EEOC has stepped up enforcement of anti-discrimination laws. However, they also point to internal problems with employers.
Some employers might perform only those activities that they believe will give them an effective legal defense should an employee sue. They write anti-discrimination and anti-retaliation policies into their employee handbooks, make supervisors attend training once a year, and then call it a day. However, these things by themselves might not be effective. Policies do no good if managers do not enforce them. Training that does not address trends such as discrimination and retaliation complaints will not stop them from happening. In addition, if managers do not monitor whether this training changes supervisors’ behavior, supervisors might conclude that the company is not serious about it.
Employment Practices Liability insurance covers an employer’s legal liability for wrongful acts against employees, including discrimination and retaliation. Insurance underwriters will look at an employer’s policies and training practices, but they will also consider its claim history. Underwriters will be wary of insuring employers with a record of frequent complaints against them. If they offer coverage at all, they will charge higher premiums to account for the perceived higher risk.
To prevent claims and keep insurance premiums low, employers should consider these measures:
- Study financial results to determine how much these types of claims have cost or might cost in the future in terms of settlements, legal costs, time more profitably spent on other matters, workplace morale, insurance costs and other areas.
- Ensure that you have strong policies in place against discrimination and retaliation.
- Require supervisors and managers to attend training to prevent these kinds of claims. Include in the content of the training discussions of what is and is not permissible when it comes to discrimination and retaliation. Make it clear that performance evaluations will include incidents of discriminatory behavior.
- Create a workplace culture that does not tolerate illegal activities of any kind. Senior managers should conduct themselves in ways that model the behaviors they want to see from subordinates.
Experts say that recessions always breed increased discrimination complaints against employers. However, that does not have to be the case with every employer. Effective training costs money, but that cost is far less than the cost of insurance deductibles, higher premiums, demoralized workforces, and damaged reputations. Discrimination and retaliation claims hurt a business’s bottom line. Preventing them makes both economic and moral sense.
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When your insurance company issued your Workers Compensation policy, you paid an estimated premium for the term of the policy. This rate was based on the nature of your business and your estimated payroll. However, once your policy expires, the insurance company conducts a premium audit to gather data about your actual costs for the applicable policy term. If there is any shortfall, you are responsible for the difference between the original estimate and actual premium.
Naturally, you want to keep the difference between the estimated and actual rate as low as possible. Consider the following list of tips:
- Have all necessary records available for the auditor.
- Break down your payroll by classification code so that the auditor doesn’t have to classify any unexplained payroll. Leaving the decision up to the auditor could result in having the payroll placed in the highest classification.
- Separate overtime wages from regular wages. This allows the auditor to discount the overtime wages back to regular wages.
- Exclude tips, severance pay, meal and travel advances and bonuses paid for inventions, because none of these are included in Workers Compensation premium calculations.
- Divide uninsured subcontractor billings into material and labor costs since you are only required to pay premiums for labor. If you don’t have an actual split, figure on 50% for each. One important exception to this is for heavy equipment operators who are employed as subcontractors. In this case, use a third of their total billings as reportable labor costs.
- Don’t include short- or long-term disability payments in the data given to the auditor because these are excluded from premium calculations.
- Be sure to cap all covered officers’ payroll at the maximum for your state.
- Exclude wages paid to employees who are on active military duty because their wages aren’t included in premium calculations.
- Present the auditor with all Certificates of Insurance for covered subcontractors so you aren’t charged for them.
- Classify all employees in the lower-rated payroll classifications if you aren’t sure about where they should be classified. However, you should never deliberately misclassify an employee.
- Be sure you make the auditor aware of all employees who do only clerical work and are physically located away from the shop floor. These employees qualify to be classified in the lower rated clerical codes. If your clerical staff isn’t physically separate from the shop, you should consider changing their work location.
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Most employers know that they can be held legally liable for sexual harassment occurring in their workplace. However, many may not know that there’s a way to considerably reduce their exposure to liability. The courts have actually laid out a road map of sorts when it comes to reducing employer risk for sexual harassment liability. In 1998, the U.S. Supreme Court made it quite clear that laws related to sexual harassment weren’t made in an effort to enable employer vs. employee lawsuits, but rather as a motivation for employers to take reasonable and responsible action in preventing sexual harassment. Employers that have demonstrated this reasonable and responsible action are less likely to be held legally liable for damages. Here are the practices and policies every employer should abide to fulfill their obligation in preventing workplace sexual harassment, thereby reducing their liability risk:
- A comprehensively written policy against sexual harassment should be in place to demonstrate the concern, stance, and dedication to the prevention of sexual harassment on the part of the employer. This policy should clearly define sexual harassment and give examples of what constitutes sexual harassment. After the policy is read, the employee should know that either gender may be victim; either gender may perpetrator; and that sexual harassment is dictated by victim perception, not whether or not the perpetrator intended the behavior as harassing.
- Legal terminology and otherwise obtuse language should be avoided when composing a sexual harassment policy. It should be written in a manner that an average employee would comprehend. In most cases, if the wording is such that a high school senior would have difficulty comprehending it, then it’s too complex. Employers should also be mindful of non-English speaking employees and publish translations accordingly.
- Make sure that the sexual harassment policy identifies which employees or department should be contacted to initiate the complaint process; outlines the complaint and investigation process from start to finish, including any appeal process; and identifies what the penalties are for sexual harassment. Retaliation should also be addressed. It should be clear that retaliation against a complainant will not be tolerated and that retaliation is a form of harassment too.
- More often than not, an employer isn’t held liable because of the actual harassment, but rather because they failed to have or apprise their employees of the complaint procedure or failed to respond when the complaint procedure was utilized. So, never write a complaint off or disregard it. Each and every complaint should be viewed as a serious matter and investigated with a process that’s consistent and that’s reasonable for all involved.
- Although many employers feel that their policy is adequate, the best policy in the world is useless if an employee can claim that they’ve never laid eyes on it. Therefore, orientation of new employees should include a signature that the new employee has received, read, and understood the sexual harassment policy.
- Of course, there must be ongoing exposure to the policy for employees to realize that their employer is actually serious about sexual harassment and the enforcement of consequences. Sources of exposure may include periodic sexual harassment summaries through brochures or educational pamphlets, newsletter articles, in-service training, and employee meetings.
- It’s also crucial that any employee in a supervisory position be trained not only to enforce the sexual harassment policy, but as someone that could be a harasser themselves. Often, especially in medium to larger businesses, the employer will not be the one to first receive a complaint. Yet, employers are strictly liable if supervisors engage in subordinate harassment or fail to enforce the harassment policy. Keep in mind that many people engage in behaviors that are overlooked by individuals they come across in their personal life and thereby feel that the same behaviors will be overlooked at work too.
The most often used excuse when an employee is accused of sexual harassment is that they weren’t the only employee that has acted in such a way. Sadly, although the above statement in no way excuses the behavior, it’s often true. And, it’s this type of environment that tolerates or overlooks sexual harassment that substantially increases the liability risk of the employer. Simply having a policy will not hold weight in court. It must be comprehensive and there must be employee exposure and employer enforcement. These steps require a time and resource commitment for the policy to be applied in a manner that will reduce sexual harassment liability risks for employers and reduce the frequency of sexual harassment incidences for employees.
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The federal Fair Labor Standards Act forbids an employer from firing a worker because he filed a complaint accusing the employer of violating the law. It doesn’t say whether the employee’s complaint must be in writing. What if the worker complains verbally but never makes a written complaint? Does the FSLA’s prohibition against firing him still apply? That was the question the U.S. Supreme Court faced in a case it decided in March 2011.
Kevin Kasten, following the instructions in the employee handbook, told his supervisor that the location of the company’s time clocks might be illegal because it prevented workers from getting credit for the time they spent putting on and removing their protective work gear. (The FSLA requires employers to pay workers for this time.) Getting no response from his supervisor, he also complained to human resources staff and told them that he was contemplating a lawsuit. Eventually, the employer fired him. He claimed that he was fired for complaining about the location of the time clock; the company said it was because he repeatedly failed to punch in and out on the clock despite several warnings.
Kasten sued the company for illegal retaliation. The trial and appellate courts, while accepting his version of what happened, ruled in favor of the employer. The FSLA, they said, requires employees to make written complaints to their employers about possible violations, but Kasten made all his complaints verbally. Kasten appealed to the U.S. Supreme Court, which ruled in his favor.
Writing for the six-justice majority, Justice Stephen Breyer said, ” … (A)n interpretation that limited the provision’s coverage to written complaints would undermine the (FLSA’s) basic objectives … Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated or overworked workers?” He also noted that the federal Department of Labor has for decades held that the law’s requirements include oral complaints, even going so far as to set up hotlines for employees to make complaints.
Moreover, Breyer pointed out that other laws, regulations and court decisions have used the word “filed” in connection with oral complaints. He particularly noted that court decisions at the time Congress enacted the FLSA used “filed” with oral complaints. “Filings may more often be made in writing … But we are interested in the filing of ‘any complaint.’ So even if the word ‘filed,’ considered alone, might suggest a narrow interpretation limited to writings, the phrase ‘any complaint’ suggests a broad interpretation that would include an oral complaint.”
Justices Antonin Scalia and Clarence Thomas disagreed (Justice Elena Kagan recused herself from the case). In a dissenting opinion, Scalia argued that the FSLA forbids discrimination against a worker if that worker has filed a complaint with a government agency. He pointed out that every other use of the word “complaint” in the FSLA refers to an official filing with a government entity. Further, he said that the phrase “filing any complaint” appears alongside other activities that involve interaction with a government entity. Because Kasten complained only to his employer and not to a government agency, Scalia said, he was not protected by the law’s anti-retaliation provisions.
The dissents notwithstanding, employers should be aware that this decision protects workers from retaliation for making oral complaints to their employers. Businesses should create and implement policies stating that employees who make such complaints will not suffer retaliation. Since Employment Practices Liability insurance policies cover employers for retaliation claims, insurance companies will expect employers to take steps to make these claims less likely.
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Medical losses paid for California workers compensation claims remained relatively flat from 2012 to 2013, but payments for Medicare reimbursement and medical cost containment programs saw an uptick during that period, according to a new analysis.
California workers comp insurers and self-insured employers paid $5.2 billion in medical losses in 2013, up from $4.8 billion in 2012, the San Francisco-based Workers’ Compensation Insurance Rating Bureau of California said Thursday in a statement. Of those losses, payers placed $129 million into Medicare set-aside accounts in 2013, up from $92 million in 2012.
The Medicare Secondary Payer Act requires self-insured employers and insurers to act as primary payers for workers comp and liability claims involving Medicare beneficiaries. The U.S. Centers for Medicare and Medicaid Services advises workers comp payers to set up Medicare set-aside accounts to pay for future medical costs for a beneficiary’s injury.
California comp payers also reimbursed $6 million to Medicare in 2013 for treatment that had been already provided to workers comp claimants for their occupational injuries, up from $3 million for such reimbursements in 2012, according to the WCIRB report.
The bureau noted that insurers and employers paid $446 million in 2013 for medical cost containment programs related to California workers comp claims, up from $414 million in 2012. Costs for such programs have increased every year in California since 2009, the report showed.
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People are more active when the weather gets warm. They participate in more sports and recreational activities. Do you have the right type and amount of insurance to be well protected against all of the things that can go wrong?
