Category Archives: Employment Practices Liability

by | September 4, 2011 · 8:05 am

Hospitality Industry Insurance Risks: Hotel & Restaurant Owners Must Review And Update Insurance Coverage To Protect Their Businesses

  •  Proper insurance to value (ITV). The market sometimes offers blanket and agreed amount limits, which can help buyers overcome an instance where the insured has purchased too little building coverage.
  •  Business income limits. Most insurance buyers don’t take time to complete a BI worksheet—a valuable tool to determine proper exposure levels. The tool forces buyers and agents to address all aspects of a potential loss and its business impact.
  • Employee dishonesty limits. Hotel owners think they’ll never use this, and then learn their controller has been siphoning off small amounts of money for years, and the total loss is substantial.
  • Guest discrimination coverage. Hotels might buy employment practices coverage and not the guest coverage. Some specialty programs provide the coverage in the GL form.
  • Property in your care, custody or control. This is a “must have” for all hotels. Agents can offer this in the GL form or buy it as a legal liability (innkeepers) coverage on the crime policy.
  • Health care professionals as insureds. Resorts with spas have this exposure and need this coverage.
  • Valet parking services. Most full service upscale and luxury hotels and resorts offer valet parking services and need to be sure they are covered properly.
  • Ordinance and law. This is key property coverage with the ever-changing building codes. Buyers either buy too little or go without to help control cost. That’s not a good decision.
  • Green building coverage. The three key coverages are:

â—Š Green certified coverage. For a loss to a green certified building, coverage available from AGPOM will apply to rebuilding and additional expenses driven by regaining green certification.

â—Š Green upgrade coverage. This coverage pays the extra expense when a non-certified building opts to go green after a loss. Added costs might result from use of Energy Star equipment; eco-friendly lighting, paint and carpet; or water-efficient plumbing fixtures.

â—Š Green commissioning expense. This coverage provides for a commissioning engineer to inspect a newly built or repaired system after a covered loss to confirm operation at peak performance and expected efficiency.

For more:  http://ventureprograms.com/wp-content/uploads/articles/Hope%20For%20Hospitality.pdf

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by | June 28, 2011 · 1:15 pm

Hospitality Industry Insurance Risks: "Employment Practices Liability Insurance" May Contain "Exclusions For Intentional Acts" That May Deny Coverage To Hotel Executives In "Disparated Treatment And Sexual Harassment" Cases

“…a panel of arbitrators found that (the executive)  “was well acquainted with the company’s policy on sexual harassment and other acts of inappropriate conduct.”  They further found that (the executive)  “did not comply with the policy on sexual harassment and that his refusal was willful.” 

“…attorneys should remind their clients to carefully review their existing EPLI policies and to understand all exclusions that may apply, as well as to be mindful of such exclusions when negotiating the purchase of a new EPLI policy…”

Exclusions typically found in EPLI policies include exclusions for Fair Labor Standards Act claims, National Labor Relations Board decisions, ERISA matters, costs of complying with accommodations mandated by the Americans with Disabilities Act, and claims arising out of facts or circumstances known to the employer before the effective date of the policy.  Another possible exclusion is for intentional acts.  This exclusion generally is intended to eliminate coverage if an employer acts with “wonton, willful, reckless, or intentional disregard for any laws.” This exclusion is a carryover from other policies traditionally offered, including commercial general liability policies and workers compensation policies.

The question that arises is whether an intentional acts exclusion precludes coverage for disparate treatment or sexual harassment claims.  By their very nature, disparate treatment and sexual harassment require some type of intentional conduct.  If the intentional acts exclusion is interpreted broadly enough, an allegation of disparate treatment or sexual harassment may provide the insurer grounds for denying coverage under the policy.

For more:  http://www.lexology.com/library/detail.aspx?g=54d3b2ac-48f1-497b-ac65-ee0e32826815

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by | June 26, 2011 · 5:59 pm

Hospitality Industry Employee Risks: Hotel Management Should Use Employment Contracts Which Are "At Will", Do Not Discriminate And Define Scope Of Employment; Comprehensive Insurance Should Be In Place At All Times

Hotel Management and owners should set up uniform employment contracts, which:

  • Do not discriminate against people based on any of the protected classes as defined by federal or state law;
  • Define the scope of the employment;
  • Say if the employment is for a term or “at will”;
  • Assign the pre-corporate formation intellectual property to the company;
  • Assign all subsequently created intellectual property to the company; and
  • Protect the corporate intellectual property from disclosure.

The last two categories of protecting intellectual property of the company can be accomplished by drafting non-disclosure agreements, and Proprietary Invention Assignment Agreements.

Insurance – Getting insurance for your company is a bet worth taking, given the potential unpleasant surprises of not being prepared. Again, your needs will vary depending on your company, but among the standard offerings are:

  • Comprehensive General Liability Policies (“CGL”) – A CGL policy is usually geared towards protecting a company from personal injury;
  • Directors and Officers (“D&O”) Insurance – D&O insurance may cover the wrongful acts of the officers and directors of a company;
  • Advertising Injury Insurance – Insurance that covers defamation, invasion of privacy, copyright infringement and other intellectual property injuries. (The advertising injury is usually a part of a larger policy, like a CGL, and not a policy onto itself.); and
  • Employment Practices Liability Insurance (“EPLI”) – The EPLI is a specialized insurance policy protecting companies against employment lawsuits.

For more:  http://venturebeat.com/2011/06/27/4-legal-pitfalls-startup-owners-must-face/

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by | June 5, 2011 · 9:50 am

Hospitality Industry Legal Risks: Amended "Americans With Disabilities Act" (ADA) Became Law On May 24 With Potential For "Increased Frequency Of Litigation Losses"; Management Must Improve Accomodation Efforts

“…under the amended act, an employee who suffers from depression may be able to function quite normally with the aid of medication but will still be considered to be disabled and will need to receive accommodation….”

“…the frequency of discrimination claims will likely increase — as will the frequency of litigation losses — but she says the severity of individual claims will likely not change all that much, with class actions in this field being a rarity…”

Existing employment-practices liability insurance policies shouldn’t have to be rewritten or modified, she says. “We would push back on any attempt to limit coverage just because the act has been expanded.”

Employers, however, should be integrating their disability-management programs to include non-occupationally injured and ill employees, and not just workers’ compensation cases, according to Pimentel.

“That is the big trend, and by the way, from an ADA-compliance standpoint, I recommend employers take a close look at doing that,” Pimentel says.

Employers should also be revisiting how much training they are doing among their supervisors on employee etiquette, language and comfort levels in communicating with disabled employees, he advises.

“Talking to them about their needs for accommodation is … an enforced requirement under the law,” Pimentel says.

For more:  http://www.hreonline.com/HRE/story.jsp?storyId=533338925

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by | March 6, 2011 · 3:24 pm

Hospitality Industry Employee Risks: Recession Causing More Laid-Off Workers To File "Wage-And-Hour" Claims Which Is Covered Under "Employment Practices Liability" Insurance

“…industry experts say they have seen an increase in wage-and-hour claims, which has led some insurers to stop writing such defense coverage, which most typically is provided for as a sublimit under employment practices liability insurance policies…”

Laid-off workers can, for example, allege that they were not paid for all hours worked, misclassified or not properly paid overtime, experts say.

As layoffs drive wage-and-hour claims, middle-market employers may find defense coverage more difficult to find and more costly when they do, particularly in California, insurers and brokers say. The market firming for wage-and-hour defense coverage comes after a rise in claims by laid-off workers who allege violations of the Fair Labor Standards Act and other laws, according to brokers and insurers.

“It’s a reflection of how difficult it is for employees to find another job,” said Christian Hamlin, a professional lines producer in the Los Angeles office of wholesaler Burns & Wilcox Ltd.

The U.S. unemployment rate remains high, but has improved from the decade’s peak unemployment rate of 10.1% in October 2009, according to the U.S. Department of Labor’s Bureau of Labor Statistics. In February, the U.S. unemployment rate was 8.9%, a 0.1% decline from January, according to BLS.

At the same time, Coverage remains available as some insurers continue to provide it, said Michael Mahoney, senior vp at Willis Insurance Services of California Inc. in San Francisco.

For more:  http://www.businessinsurance.com/apps/pbcs.dll/article?AID=/20110306/ISSUE01/303069982

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by | February 26, 2011 · 8:09 am

"P3 Hospitality Risk Update": "Title 3 And ADA Law Changes" From Petra Risk Solutions' Risk Manager Joe Fisco (Video)

[vimeo 51945038 w=500 h=279]

Petra Risk Solutions’ Risk Manager, Joe Fisco, offers a P3 Hospitality Risk Update – ‘Title 3 and ADA Law Changes’. 

P3 ( Petra Plus Process) is the Risk Management Division of Petra Risk Solutions – America ’s largest independent insurance brokerage devoted exclusively to the hospitality marketplace.

 For more information on Petra and P3 visit petrarisksolutions.com or call 800.466.8951.

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by | February 20, 2011 · 12:18 pm

Hospitality Industry Employee Risks: Hotel Management Must Establish "Off-The-Clock" Policies For Employee Responses To Business Calls, Texts And Emails

Adding to the complexity of off-the-clock rules are the number of employees who respond to e-mails, text messages or phone calls after their shift is finished. Workers often do so by choice, but the employer could be held liable for overtime should the employees file a later claim.

“Time spent on these activities will likely be deemed compensable,”

One area that has attracted a significant amount of attention in recent years is rest periods; defined as requiring a 10-minute break period for every four hours of work, and meal periods of at least 30 minutes for shifts lasting longer than five hours.

Previously employers were required by law to ensure their employees took breaks appropriately, but it was difficult to manage, particularly for employees who preferred to take a break and conduct personal business at their desk or work station.

In an appeal of a court order in the case of Brinker Restaurant Corp. vs. Superior Court, the appeal reversed the stricter order, ruling that rest and meal breaks need only be made available, and not ensured.

As this is an issue that affects so many people and produced so many lawsuits, the California Supreme Court granted a review of Brinker decision. A final ruling is expected this year.

“We recommend counseling employees to get off the clock and take their break,” Poole said.

There should also be wording describing the break periods the employee is required to take, at the bottom of every time sheet or card an employee signs, Koegle said. Repeatedly signing a time card with the advisory would be one means of acknowledging the law by employer and employee alike.

Employers should include strong written policy in their company employee handbook that nonexempt employees are not expected to work after-hours, and advise their employees of the policy.

Last, companies requiring employees to change in and out of uniforms at the workplace must compensate the employees for the time spent doing so.

Privacy expectations

The recent technology explosion brings a whole new set of complications for employers. The U.S. Supreme Court rules that an employee with a company-issued device such as a cell phone, smart phone or computer has a reasonable right to privacy while using the equipment.

First Amendment rights protect employee messages, even those a company deems objectionable. A company must have a reasonable cause to search text, e-mails or Internet browsing by an employee.

It is expected however that in the next few months the courts will rule in a company’s favor, granting a company the right to prohibit activity such as surfing the Internet for pornography. Employee use of social media, whether performing duties on the job or for personal use, is also a hot topic.

Companies will need to craft well-written employee policies outlining actions that are subject to discipline or termination. The next question will be how policies can be enforced if an employee violates policy after-hours when they are off-duty.

For more:  http://www.the-signal.com/section/36/article/40833/

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by | December 30, 2010 · 3:59 am

Hospitality Industry Employee Risks: Hotel Owners Should Maintain “Employment Practices Liability” Insurance Coverage For Wrongful Termination, Harassment And Discrimination Suits

EPL insurance policies protect businesses from the financial costs incurred from employment-related lawsuits filed for a range of reasons, from wrongful termination to harassment to discrimination and so on. More than half of claims are filed against small businesses…however, less than two percent of businesses with fewer than 50 employees purchase EPL insurance.

  • A recent Chubb survey found that 36 percent of private company executives understand the gravity of their exposure to EPL suits and 21 percent said they had an experience with an EPL suit in the last five years.
  • While every EPL policy is different, a company with $1 million in sales and 50 employees can likely get a policy for about $7,000 per year—$10,000 if they also take out coverage protecting directors and officers in the event of liability lawsuits against them personally.
  • The leading charge filed in discrimination cases is an allegation of racial discrimination, at 36 percent of cases, according to EEOC figures from 2009. Gender-based discrimination was alleged in 30 percent of cases.
  • Age-based claims made up 24 percent
  • Disabled claims tallied 23 percent.

In many cases, multiple allegations are made. One of the growing charges, according to the EEOC, is retaliation against employees for making discrimination claims, which can involve a job switch that the employee views as a demotion related to the initial claim.

“If you go to your supervisor and say you’ve been harassed by Joe, you can bring that claim to EEOC, but then if they decide to fire you or cut back your hours, that is the retaliation component,” says Tom Hams, Aon Risk Solutions’s EPL practice leader. “That retaliation component can survive much more than the allegation itself.” The employer may win on the allegation of whether or not you were discriminated against, but they may lose a case based on the retaliation claim for moving the complainant to a different job or office setting.

For more:  http://www.inc.com/guides/2010/12/how-to-reduce-employment-liability-claims_pagen_2.html#

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