Regulatory Risk

Employment Law Outlook for 2016

Litigation against employers continues to rise, often with significant financial consequences.
By: | January 25, 2016 • 4 min read
Employment Law Outlook

U.S. employers faced a record number of class-action lawsuits in 2015, with more than 1,300 rulings across the nation.

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The financial risks of such cases are enormous, with the monetary value of employment-related class-action settlements reaching an all-time high in 2015. The top 10 settlements alone totaled nearly $2.5 billion, according to the “12th Annual 2015 Workplace Class-action Litigation Report” by Chicago-based law firm Seyfarth Shaw.

The last several years have been transformative in class-action and collective-action litigation involving workplace issues, said Gerald Maatman, Jr., partner and co-chair of the Complex Discrimination Litigation Practice Group at Seyfarth Shaw.

A number of clear employment litigation themes have emerged that may help executives direct their efforts in order to mitigate their organization’s risk.

There’s been virtually a complete turnaround from the collective “sigh of relief” that resulted from the landmark 2011 Dukes v. Walmart, in which 1.5 million women sued the retail giant for back pay.

The Supreme Court ruled in favor of Walmart, changing the standards by which lawyers could certify class-action lawsuits and giving employers cause to celebrate, that is until the last couple of years.

“For the first couple of years, as Dukes began to take hold and impact selection of case theories, types of cases, and litigation filings, a lot of people thought class-action law had become pro-defense and anti-plaintiff,” said Maatman.

“It came home to roost in 2015 that is no longer true and the manner in which cases are brought has changed such that the plaintiff’s bar is now enjoying success in bringing, prosecuting and settling cases.”

The Supreme Court, according to the Seyfarth Shaw report, “has created a complex tapestry of both pro-worker and pro-business rulings through which employers must carefully thread the needle.”

At the same time, Maatman said, there has emerged a “push-the-envelope agenda” by the Equal Employment Opportunity Commission, Department of Labor and National Labor Relations Board, emboldened by the Obama administration.

In 2015, the EEOC was involved in three Supreme Court cases that brought significant implications for employers — EEOC v. Mach Mining (gender discrimination); EEOC v. Abercrombie & Fitch Stores (religious discrimination); and Young v. UPS (pregnancy discrimination) — according to Barry A. Hartstein, co-chair, EEO and diversity practice group at Littler Mendelson in Chicago.

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Under both the Equal Pay Act and the Age Discrimination Act, the EEOC has authority to direct an investigation even when a charge has not been filed by an employee. All these factors have combined to create a “perfect storm when it comes to wage-and-hour litigation,” according to Maatman.

All indications point to this year resulting in an even greater number of employment-related lawsuits. Fortunately, a number of clear themes have emerged that may help executives direct their efforts in order to mitigate their organization’s risk:

Continued Scrutiny of Hiring Policies and Practices: Recent litigation has focused on criminal history, but the EEOC has been closely scrutinizing other pre-employment hiring practices, such as testing and assessments.

Expansion of Pregnancy Discrimination Claims: EEOC guidance issued in the aftermath of the Young v. UPS ruling makes it clear that failing to accommodate pregnant employees may expose employers to ADA claims, based on temporary disability caused by pregnancy.

Evolution of Religious Discrimination Claims: The scope of reasonable accommodation for religious practices has the potential to impact grooming and appearance policies, as well as requested time-off policies.

Broad Interpretation of LGBT Rights in the Workplace: The EEOC has announced its intentions to protect workers from discrimination on the basis of sexual orientation and/or gender identity by defining such discrimination as an allegation of sex discrimination under Title VII.

“The EEOC is actively looking for cases to push their arguments about the scope of Title VII,” said J. Randall Coffey, a partner in the Kansas City office of Fisher & Phillips LLP.  “They will be trying to find cases they can use as a vehicle to convince courts to adopt their view.”

Increased Scrutiny of Independent Contractor Classification: Pointing to the 2015 Alexander v. FedEx Ground Package System independent contractor misclassification case that resulted in a $228 million settlement, Maatman predicts a significant increase in “copycat cases” in 2016.

“If you are labeling people as independent contractors and not paying them benefits or overtime, but otherwise treating them as employees, you may owe them back pay or benefits,” he said.

The average cost of defending an organization against an employee lawsuit tops $150,000, said Maatman.

A class-action lawsuit results in an even greater expenditure. And if the court rules in favor of the employees — or the employer decides to settle — it can be a “bet-the-company” scenario with the potential to bankrupt the business, he said.

Therefore, it’s incumbent upon companies to take any steps necessary to resolve an employee’s issue internally, before he or she hires an attorney or turns to a government agency.

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Employers can avoid becoming the target of a class-action lawsuit or EEOC investigation by keeping tabs on what kinds of claims are being levied, said Coffey. Focusing on the “hot spots” to stay ahead of the curve, reducing the risk of costly litigation.

“The smartest thing an … executive can do is take a look at the EEOC’s strategic enforcement plan because it’s a roadmap to which specific areas the agency is going to focus its enforcement activities on,” said Coffey.

“If you have concerns about whether you are in compliance with the law, you can scrutinize the list to make sure your policies and practices are up to snuff.”

Julie Cook Ramirez is a long-time journalist. She can be reached at riskletters@lrp.com.
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Risk Insider: Terri Rhodes

Embrace Integration to Benefit From It

By: | December 22, 2015 • 2 min read
Terri L. Rhodes is CEO of the Disability Management Employer Coalition (DMEC). Prior to returning to DMEC, Terri was an Absence and Disability Management Consultant for Mercer delivering strategic absence and disability management solutions to clients of all sizes, Director of Absence and Disability for Health Net and Corporate IDM Program Manager for Abbott Laboratories.

Integrated Absence Management (IAM) is defined as one seamless program encompassing disability, leave administration, ADA compliance and workers’ compensation. More advanced programs may include health, wellness and Employee Assistance Programs.

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As benefits and risk managers contemplate this topic, the discussion tends to bounce between the ideal world and the realities of IAM. It is often difficult to agree what IAM means for an organization.

The process is not an exact science. Individual departments must work together to define roles and responsibilities. Open, active communication is critical.

For some, integration is the human resources holy grail to manage the complexity of workplace regulation, streamline employee processes and minimize the drain on productivity.

However, others maintain that this path cannot be successful and that to be self-insured and/or self-administered is the only realistic option.

Despite the challenges, companies are integrating more and more. Many carriers and third party administrators work together with great success. Generally, it is the workers’ compensation and overall risk community which struggles to see beyond its own work processes and understand the value of integration.

In many companies, the primary obstacles to success are that benefits and risk teams often work independently and fail to communicate. Some of this is deliberate, rooted in a belief in specialization.

More often than not, however, it is about fear; the fear of change, losing control or possible job loss. That’s a shame, because opportunity beckons.

Significant innovations in the disability and benefits arenas range from technologies that allow employees to report absences via an app; to new understandings of how behavioral health impacts absence; to using wellness as a preventive tool.

In many companies, the primary obstacles to success are that benefits and risk teams often work independently and fail to communicate. Some of this is deliberate, rooted in a belief in specialization.

Maximizing these innovations requires a fresh look at departments that administer absence and disability.

Ineffective communication results when different departments speak different languages with contrasting goals. Risk managers target risk, not employee benefits. Benefits managers are employee-centric and typically do not think in terms of risk.

The ideal scenario is that risk managers see the opportunity to manage risk by lending a hand in leave and disability management.

Certainly, legal liability is a growing concern, given the increased role FMLA, ADA, Employment Practices Liability (EPL), state and even local leave laws play in leave and disability management. Executives and managers need to proactively address the interplay of these programs, rather than communicating only when something “goes awry.”

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Successful programs use expertise in FMLA, ADA, and related laws shared among managers of disability, benefits, and risk, while working closely with legal and even public affairs to ensure compliance. They should all be working together to anticipate and participate in relevant policy changes that impact their workforce.

Changes in health care and leave laws represent both risk and opportunity with more change and innovation occurring in the disability and benefits sectors than at any time in recent history.

Every professional (risk, benefits or HR) should be involved in assessing these changes. This can only be achieved when people work together in a systematic and deliberate way. In other words, when disability, leave, workers’ comp and risk programs are integrated.

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Sponsored: State of Vermont

7 Questions to Answer before Choosing a Captive Insurance Domicile

Ask the right questions and choose a domicile for your immediate and long-term needs.
By: | February 5, 2016 • 7 min read
Vermont_SponsoredContent

Risk managers: Do your due diligence!

It seems as if every state in America, as well as many offshore locations, believes that they can pass captive legislation and declare, “We are open for business!”

In fact, nearly 40 states and dozens of offshore locations have enabling captive insurance legislation to do just that.

With so many choices how do you decide who is experienced enough to support the myriad of fiscal and regulatory requirements needed to ensure the long term success of your captive insurance company?

“There are certainly a lot of choices,” said Mike Meehan, a consultant with Milliman, an actuarial firm based out of Boston, Massachusetts, “but not all domiciles are created equal.”

Among the crowd, there are several long-standing domiciles that offer the legislative, regulatory and infrastructure support that makes captive ownership not only a successful risk management tool but also an efficient entity to manage and operate.

Selecting a domicile depends on many factors, but answering these seven questions will help focus your selection process on the domiciles that best fit your needs.

 

1. Is the domicile stable, proven and committed to the industry for the long term?

ThinkstockPhotos-139679578_700The more economic impact that the captive industry has on the domicile, the more likely it is that captives will receive ongoing regulatory and legislative support. The insurance industry moves very quickly and a domicile needs to be constantly adapting to stay up to date. How long has the domicile been operating and have they been consistent in their activity over the long term?

The number of active captive licenses, amount of gross premium written in a domicile and the tax revenue and fees collected can indicate how important the industry is to the jurisdiction’s bottom line. The strength of the infrastructure and the number of jobs created by the captive industry are also very relevant to a domicile’s commitment.

“It needs to be a win – win situation between the captives and the jurisdiction because if not, the domicile is often not committed for the long term,” said Dan Kusalia, Partner with Crowe Hortwath LLP focused on insurance company tax.

Vermont, for example, has been licensing captives since 1981 and had 589 active captives at the end of 2015, making it the largest domestic domicile and third largest in the world. Its captive insurance companies wrote over $25 billion in gross written premiums. The Vermont State Legislature actively supports an industry that creates significant tax revenue, jobs and tourist activity.

 

2. Are the domicile’s captives made up of your peer group?

The demographics of a domicile’s captive companies also indicate how well-suited the location may be for a business in a particular industry sector. Making sure that the jurisdiction has experience in the type and form of captive you are looking to establish is critical.

“Be among your peer group. Look around and ask, ‘Who else is like me?’” said Meehan. “Does the jurisdiction have experience licensing and regulating the lines of coverage for other businesses in your industry sector?”

 

3. Are the regulators experienced and consistent?

Vermont_SponsoredContentIt takes captive-specific expertise and broad experience to be an effective regulator.

A domicile with a stable and long-term, top-tier regulator is able to create a regulatory environment that is consistent and predictable. Simply put, quality regulation and longevity matter a lot.

“If domicile regulators are inexperienced, turnaround time will be slower with more hurdles. More experience means it is much easier operating your business, especially as your captive grows over time,” said Kusalia.

For example, over the past 35 years, only three leaders have helmed Vermont’s captive regulatory team. Current Deputy Commissioner David Provost is one of the longest tenured chief regulators and is a 25-year veteran in the captive insurance industry. That experienced and consistent leadership enables the domicile to not only attract quality companies, but also to provide expert guidance on the formation process and keep the daily operations running smoothly.

 

4. Are there world-class support services available to help manage your captive?

Vermont_SponsoredContentThe quality of advisors and managers available to assist you will have a large impact on the success of your captive as well as the ease of managing the ongoing operations.

“Most companies don’t have the expertise to operate an insurance company when you form a captive, so you need to help build them a team,” Jeffrey Kenneson, a Senior Vice President with R&Q Quest Management Services Limited.

Vermont boasts arguably the most stable and experienced captive infrastructure in the world. Many of the leading captive management companies have their headquarters for their Global, North America and U.S. operations based in Vermont. Experienced options for captive managers, accountants, auditors, actuaries, bankers, lawyers, and investment professionals are abundant in Vermont.

 

5. Can the domicile both efficiently license and provide on-going support to your captive as it grows to cover new lines of coverage and risks?

Vermont_SponsoredContentLicensing a new captive is just the beginning. Find out how long it takes for the application to get approved and how long it takes for an approval of a plan change of your captive’s operations.

A company’s risks will inevitably change over time. The captive will need to make plan changes which can include adding new lines of business. The speed with which your domicile’s regulatory branch reviews and approves these plan changes can make a critical difference in your captive’s growth and success.

The size of a captive division’s staff plays a big role in its speed and efficiency. Complex feasibility studies and actuarial analyses required for an application can take a lot of expertise and resources. A larger regulatory team will handle those examinations more efficiently. A 35-person staff like Vermont’s, for example, typically licenses a completed application within 30 days and reviews plan changes in a matter of days.

 

6. What are the real costs to establishing and managing your captive?

Vermont_SponsoredContentIt is important to factor in travel costs, the local costs of service providers, operating fees, and examination fees. Some states that do not impose a premium tax make up for it in high exam fees, which captives must be prepared for. Though Vermont does charge a premium tax, its examination fees are considered some of the least expensive options in the marketplace.

It is also important to consider the ease and professionalism of doing business with a domicile in the ongoing operations of your captive insurance company.

“The cost of doing business in a domicile goes far beyond simply the fixed cost required. If you can’t efficiently operate due to slow turn-around time or added obstacles, chances are you have made the wrong choice,” said Kenneson.

 

7. What is the domicile’s reputation?

Vermont_SponsoredContentMake sure to ask around and see what industry experts with experience in multiple domiciles have to say about the jurisdiction. Make sure the domicile isn’t known for only licensing certain types of captives that don’t fit your profile. Will it matter to your board of directors if your local newspaper decides to print a story announcing your new insurance subsidiary licensed in some far away location?

Are companies leaving the jurisdiction in high numbers and if so, why? Is the domicile actively licensing redomestications — when an existing captive moves from one domicile to another? This type of movement can often be a positive indicator to trends in a domicile. If companies of a particular size or sector are consistently moving to one state, it may indicate that the domicile has expertise particularly suited to that sector.

Redomestications made up 11 of the 33 new captives in Vermont in 2015. This trend is a positive one as it speaks to the strength of Vermont. It reinforces why Vermont is known throughout the world as the ‘Gold Standard’ of domiciles.

Asking the right questions and choosing a domicile that meets your needs both today and for the long term is vital to your overall success. As a risk manager you do not want surprises or headaches because you did not ask the right questions. Do the due diligence today so that you can ensure your peace of mind by choosing the right domicile to meet your needs.

For more information about the State of Vermont’s Captive Insurance, visit their website: VermontCaptive.com.

 

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This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with the State of Vermont. The editorial staff of Risk & Insurance had no role in its preparation.




The State of Vermont, known as the “Gold Standard” of captive domiciles, is the leading onshore captive insurance domicile, with over 1,000 licensed captive insurance companies, including 48 of the Fortune 100 and 18 of the companies that make up the Dow 30.
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