Public Risk May June 2017 by Moire Marketing Partners

PUBLISHED BY THE PUBLIC RISK MANAGEMENT ASSOCIATION MAY/JUNE 2017

MINNESOTA RISK AND LITIGATION MANAGER TO LEAD PRIMA

Meet PRIMA’s 2017–2018 President Amy Larson, Esq. PAGE 6

ALSO IN THIS ISSUE

THE OPIOID EPIDEMIC CONTINUES TO GROW

and with it Comes Additional Challenges Involving Sober Living Homes PAGE 12

EMPLOYMENT PRACTICES LIABILITY PITFALLS PAGE 16

DON’T SHOOT THE MESSENGER: Tips for Delivering Bad News PAGE 20

MILLENNIALS, SAFETY AND ERGONOMICS PAGE 24

PRIMA ANNUAL CONFERENCE PREVIEW PAGE 28

PRO

TER

SUPPOR UD VISIT US AT BOOTH

107

FP 1 RIM A 2 0

BITCO Insurance Companies1 Old Republic Aerospace2

Specialized Offerings and Public Entity Expertise. Old Republic Insurance Group offers a full suite of risk management and insurance solutions, and Third Party Administration (TPA) services, with specialized offerings and expertise to meet the unique needs of public sector clients.

Old Republic Specialty Insurance3 PMA Companies3

For more information, visit: www.oldrepublicinsurancegroup.com

Insurance contracts are underwritten and issued by: 1. BITCO General Insurance Corporation and BITCO National Insurance Company; 2. Old Republic Insurance Company; 3. Pennsylvania Manufacturersâ&#x20AC;&#x2122; Association Insurance Company, Manufacturers Alliance Insurance Company, Pennsylvania Manufacturers Indemnity Company.

MAY/JUNE 2017 | Volume 33, No. 5 | www.primacentral.org

CONTENTS

The Public Risk Management Association promotes effective risk management in the public interest as an essential component of public administration.

PRESIDENT Terri L. Evans Risk Manager City of Kingsport Kingsport, TN PAST PRESIDENT Dean R. Coughenour, ARM Risk Manager City of Flagstaff Flagstaff, AZ PRESIDENT-ELECT Amy J. Larson, Esq. Risk and Litigation Manager City of Bloomington Bloomington, MN

MINNESOTA RISK AND LITIGATION MANAGER TO LEAD PRIMA

Meet PRIMA’s 2017–2018 President Amy Larson, Esq.

DIRECTORS Brenda Cogdell, AIS, AIC, SPHR Risk Manager, Human Resources City of Manassas Manassas, VA Scott J. Kramer, MBA, ARM City/County Director of Risk Mgmt Montgomery County Commission Montgomery, AL Jani J. Jennings, ARM Insurance & Safety Coordinator City of Bellevue Bellevue, NE Scott Moss, MPA, CPCU, ARM, ARM-E, ALCM P/C Director Oregon Public Entity Excess Pool Salem, OR

By Jennifer Ackerman, CAE

Lori J. Gray Risk Manager County of Prince William Woodbridge, VA

12 The Opioid Epidemic Continues to Grow

Donna Capria, CRM, CIC, AINS Risk & Insurance Coordinator WaterOne of Johnson County Lenexa, KS

AND WITH IT COMES ADDITIONAL CHALLENGES INVOLVING SOBER LIVING HOMES By Sara Gattie, Robin Leal and Carol Nicolette

16 Employment Practices Liability Pitfalls

By Daniel W. Houston, D.D., ARM

20 Don’t Shoot the Messenger:

TIPS FOR DELIVERING BAD NEWS By Rachel Beohm

24 Millennials, Safety and Ergonomics

By Kathy Espinoza

28 PRIMA Annual Conference Preview

By Jennifer Ackerman, CAE

IN EVERY ISSUE

| 4 NEWS BRIEFS | 27 ADVERTISER INDEX

NON-VOTING DIRECTOR Marshall Davies, PhD Executive Director Public Risk Management Association Alexandria, VA EDITOR Jennifer Ackerman, CAE Deputy Executive Director 703.253.1267 • jackerman@primacentral.org ADVERTISING Jennifer Ackerman, CAE 703.253.1267 • jackerman@primacentral.org

Public Risk is published 10 times per year by the Public Risk Management Association, 700 S. Washington St., #218, Alexandria, VA 22314 tel: 703.528.7701 • fax: 703.739.0200 email: info@primacentral.org • Web site: www.primacentral.org Opinions and ideas expressed are not necessarily representative of the policies of PRIMA. Subscription rate: $140 per year. Back issue copies for members available for $7 each ($13 each for non-PRIMA members). All back issues are subject to availability. Apply to the editor for permission to reprint any part of the magazine. POSTMASTER: Send address changes to PRIMA, 700 S. Washington St., #218, Alexandria, VA 22314. Copyright 2017 Public Risk Management Association

MAY/JUNE 2017 | PUBLIC RISK

MESSAGE FROM PRIMA PRESIDENT TERRI L . EVANS

My Heartfelt Thanks!

hat a wonderful year it has been! I have been fortunate to travel around our country, representing you, the public sector risk management professional in a variety of settings. The opportunity to meet you has made this the most rewarding experience of my professional career. Your PRIMA Board of Directors has been instrumental in the success of the past year and continues to work to provide the educational opportunities you need. While the president may be the leader, this board works as a cohesive unit enhancing your PRIMA experience. I know this forward trajectory will continue in upcoming years, and I want you to know the breadth and depth of your Board of Directors and their commitment to you and to PRIMA. With that in mind, I asked each of the PRIMA board members for a quote, allowing me to introduce to you, in their own words, the fantastic people who will work for you in the upcoming year. Amy J. Larson, Esq., will be sworn in as president at the Annual Conference in Phoenix. Working tirelessly for PRIMA for many years, both on the chapter and national levels, many of you have seen Amy’s superb presentations and have gotten to know her through her presence. Her experience and intellect will enhance the role of president of PRIMA. “I am very honored and excited to be the next president of PRIMA. Over the years, I have depended and relied on PRIMA, and the friends I have because of this organization, to answer my many questions and provide assistance regarding new or unusual risk management questions and issues. This organization is a gold mine of public risk management resources. I look forward to giving back to this very important organization through my continued service on the board and as PRIMA president over the next year.” Jani Jennings of the City of Bellevue, Neb., will be sworn in as President-Elect. Jani also has many years of service to PRIMA on both the

chapter and national levels, including serving as the current conference planning chairperson. “It is such an honor to serve on the PRIMA Board of Directors and a responsibility that I do not take lightly. I will enthusiastically endeavor to ensure that PRIMA continues to provide cutting edge educational resources to all our risk management professionals. Our members’ ideas, challenges and concerns keep PRIMA looking to the future and encourages them to strive to remain the premiere public risk management educational organization in the country.”

put educational initiatives into action to benefit the risk management community.”

Scott Kramer from the City and County of Montgomery, Ala., continues to serve on the Board of Directors. “PRIMA is such a great opportunity for networking with our peers. Relationships that are formed make it easy to get support in getting answers to challenges that arise.”

Sheri Swain is the director of enterprise risk management for the Maricopa County Community College District. After serving PRIMA on the local and national levels for many years, Sheri has been elected to the Board of Directors this year. “It is my absolute honor as an incoming PRIMA Board member to serve the membership and help it to grow by bringing more awareness to the importance of our profession, in part by targeting non-risk management professionals.”

Lori Gray is from Prince William County, Va. Lori has won many accolades for her innovative work in public risk management. “Being on the PRIMA Board is a rewarding experience. I have had the opportunity to meet and work with some amazing people and work to continue the advancement of risk management in the public sector, which I hope will continue to make a difference in our communities where we live and work.”

Forestine Carroll is the risk manager for the Memphis Housing Authority. New to the PRIMA board in June, 2017, Forestine is an unforgettably delightful personality. “I am so excited to be selected to serve PRIMA because of the opportunity to give back to an organization that has given so much to me; I owe a debt that is so insurmountable that it cannot be paid. I owe a life sentence.”

Donna Capria works with WaterOne of Johnson County in Lenexa, Kan. Donna brings a quiet intellect to the board and will begin serving on the PERI Board in June. “I am dedicated to serving the membership in any way that I can. If you have any concerns or ideas that you feel would benefit the members or chapters, please feel free reach out to any board member. We are here to serve!”

I personally cannot adequately express my appreciation for the opportunity to serve as president of PRIMA. The welcome and support you have given me warms my heart. I felt it was my duty to represent PRIMA to the world as you represent our profession—with dignity, integrity, honesty and forthrightness. We may often work behind the scenes, but we are an integral part of all forward thinking governmental entities. PRIMA, as with any quality organization, is only as strong as its members, which is why PRIMA is second to none. Thank you for your commitment, your encouragement of others, your willingness to share and your dedication. You truly make a difference in our world.

Brenda Cogdell hails from the City of Manassas, Va. Brenda, who is beginning her second year on the PRIMA board, continues to grow her role. “I believe our greatest strength lies in our members. I am so proud to be a part of an organization that stimulates thinking, and allows the board, with your help, to be able to

Terri L. Evans 2016–2017 PRIMA President Risk Manager City of Kingsport, Tenn.

MAY/JUNE 2017 | PUBLIC RISK

NEWS BRIEFS

NEWS Briefs

HACKERS ACCESS JOB-SEEKERS’ PERSONAL DATA FROM 10 STATES Nine months after the Maine Department of Labor outsourced its federally mandated jobmatching service to an out-of-state vendor, that vendor has suffered a data breach that resulted in the theft of an unknown number of Mainers’ sensitive personal information. America’s JobLink of Topeka, Kan., has become the victim of a hacking incident from an outside source in which the names, dates of birth and Social Security numbers of an unspecified number of job-seekers in up to 10 states were accessed, according to a news release. The states include Alabama, Arizona, Arkansas, Delaware, Idaho, Illinois, Kansas, Oklahoma, Vermont and Maine. Maine eliminated its Maine Job Bank service within the Department of Labor in July 2016 and outsourced the work to America’s JobLink, citing cost savings and better technology as the reasons. Roughly 12,650 Maine residents have used the service since July, although not all of them included their Social Security numbers in their account information, according to the department. The data breach was discovered and America’s JobLink technicians have since patched the security hole that allowed the hackers entry, the release said. New accounts created on or after March 16 were not affected, according to the state Department of Labor.

Mainers enrolled in publicly funded training programs to America’s JobLink, which describes itself as “an alliance of workforce organizations partnering to produce high-quality information technology, while maximizing the return on investments for members.” Rabinowitz said the in-house systems used by the department prior to outsourcing were antiquated and did not meet new federal standards.

Department spokeswoman Julie Rabinowitz said Maine officials are awaiting the outcome of an investigation by a digital forensics firm and the FBI to determine how many Maine accounts were compromised.

“Maine is caught between a rock and a hard place in meeting federal requirements with limited funding, because the federal funding is based on population and unemployment rate,” she said.

In July, the department outsourced both its job-matching service and case management for

Prior to outsourcing, the department paid $650,000 to the state Office of Information

PUBLIC RISK | MAY/JUNE 2017

Technology to maintain the job bank and case management systems during the 2015 fiscal year, which ended June 30, 2016. Under the outsourcing agreement with America’s JobLink, Maine pays an annual subscription rate of $465,000 a year, plus an additional $136,500 to the information technology office, Rabinowitz said. That’s an annual savings of $48,500. The department recommended that JobLink users put a freeze on their credit report if they had a valid Social Security number in their JobLink account. Maine law allows residents to freeze their credit report for free, which prevents thieves from accessing their credit report. It is also possible to place a free, 90-day fraud alert on credit reports with the three major credit reporting organizations, it said.

PORTLAND COMMITS TO USING 100 PERCENT RENEWABLE ENERGY BY 2050

Mayor Ted Wheeler and County Chair Deborah Kafoury made the announcement at the June Key Delta Community Center in North Portland, a one-time gas station that’s been converted into a green building. Wheeler, just a few months into his mayoral term, says he has no illusions the energy goal will come easily. “They will be difficult to achieve,” he said of the push to meet all electricity needs from renewable sources by 2035, and to transition away from all remaining dirty energy sources, primarily fossil fuels in the transportation sector, by 2050. “We’re actually going to have to make deliberate steps, and deliberate investments, and deliberate policy changes in order for this to become a reality,” he said, “and I’m committed to that.” Though he praised the city’s long history of climate change activism, Wheeler said the city wavered a bit in its commitment. “The truth is

we really did take our attention off of [climate change], other priorities intervened, and I like to think that this collective effort today is reigniting our commitment to those goals.”

Electric to more quickly turn away from coal and other fossil fuels. PGE’s coal-fired plant in Boardman is expected to close by 2020, and the utility is still determining what to do next.

Portland and the county join 25 other U.S. cities that have made the 100 percent pledge in recent years. Salt Lake City and San Diego, for example, plan to ease off coal and natural gas by 2032 and 2035 respectively. Last January, the Sierra Club started the “Ready for 100” campaign to urge cities to transition to 100 percent renewable energy sources.

Wheeler said he’s engaging in that conversation with PGE, and that he is advocating for it to buy natural gas futures from an energy marketplace rather than building a new natural gas facility in Eastern Oregon. “We want to work with them and make sure we’re protecting not only the climate, but also the ratepayer,” Wheeler said.

To meet the electricity goals, the city and county will have to rely on utilities like Portland General

The city and county had no cost estimates for what fully implementing the plan would entail.

“

We’re actually going to have to make deliberate

“

Portland and Multnomah County’s top elected leaders committed to transitioning to 100 percent renewable energy sources by 2050.

steps, and deliberate investments, and deliberate policy changes in order for this to become a reality…and I’m committed to that.

Mayor Ted Wheeler

Further your public sector risk management education without leaving the office! This Webinar series features top presenters delivering risk knowledge to your desktop!

PRIMA’S 2017 RISK MANAGEMENT

WEBINAR SERIES PRIMA WEBINARS ARE FREE FOR MEMBERS! Visit www.primacentral.org today to register for individual Webinars or for the entire program!

For more information, or to register, visit primacentral.org/webinars.

MAY/JUNE 2017 | PUBLIC RISK

Artwork: Jeff Stenborn’s “Freedom Threads”

PUBLIC RISK | MAY/JUNE 2017

MINNESOTA RISK AND LITIGATION MANAGER TO LEAD PRIMA

MEET PRIMA’S 2017–2018 PRESIDENT

Amy Larson, Esq. BY JENNIFER ACKERMAN, CAE

n June, PRIMA will swear in its 2017–2018 president, Amy Larson, Esq., risk manager for the City of Bloomington, Minn. Before she takes the reins of the association, Public Risk sat down with her to find out more about her background, career and outlook on public risk management.

PUBLIC RISK: HOW DID YOU BECOME A RISK MANAGER? TELL ME FROM THE BEGINNING! Amy Larson: Growing up, I always wanted to be a lawyer. But, when I was getting ready to graduate high school, it was brought to my attention that there were too many lawyers out there, and that I’d probably be better off deciding on a different career. This decision led me to get a BA in Hospital Administration from Concordia College. While at Concordia, I was fortunate enough to have an internship at the hospital in my hometown. I was there for two summers and was introduced to the world of risk management, and I was hooked. Just think of everything that can go wrong in a hospital! It was exciting and I was hooked on a career in risk management! After law school, I started working for a company that rented hospital equipment nation-wide as their risk manager and in-house counsel. In 2000 I started working as the risk manager for the City of Bloomington and it has been a fantastic ride ever since.

PR: TELL ME ABOUT YOUR CURRENT JOB AND ENTITY— SIZE, YOUR RESPONSIBILITIES, YOUR DEPARTMENT. AL: I am the risk and litigation manager for the City of Bloomington, Minn., a city with a population of 86,000 residents and home of the Mall of America. I’m a one person department who has to wear many different hats—like most risk managers! My time is split 60/40 between the legal and finance departments. I shares an office assistant with the finance department and I work with and depend on the paralegals and civil attorneys in the legal department in order to do my job. I am certainly never bored in my job! I am responsible for the risk management program across the entire city, I review approximately 350 contracts per year, and oversee all litigation against the city. While I am able to use my law degree and love of contracts to make a difference in my current job, it is the

broad variety of topics every day where my risk management skills are utilized to make a difference for my organization and the people I have the privilege to serve. It is all of this that makes this the PERFECT career for me and makes me a proud employee of the City of Bloomington.

PR: HOW LONG HAVE YOU BEEN INVOLVED WITH PRIMA? AL: I have been involved with PRIMA, both on a national and state level, since September 2000, when I began working for the City of Bloomington. I started volunteering on various committees and task forces for PRIMA beginning in 2005 until my appointment to the Board of Directors in 2012. All of these experiences and sharing of ideas have made me the risk manager that I am today.

PR: WHAT IS THE BIGGEST BENEFIT OF BEING INVOLVED WITH PRIMA? AL: As a one person department, one of the biggest benefits of being a PRIMA member is

MAY/JUNE 2017 | PUBLIC RISK

MEET PRIMA’S 2017–2018 PRESIDENT AMY L ARSON, ESQ.

the ability to tap into the plethora of resources offered by PRIMA. From the Annual Conference and PRIMA Institute to the Cybrary and PRIMAtalk, I can always find someone who has the experience and expertise on almost any issue. They are always willing to share what will and won’t work.

PR: WHAT ARE YOUR GOALS FOR THE TERM OF YOUR PRESIDENCY?

AL: Over the past three years, the organization has been concentrating on developing programming and resources for the risk management profession through its partnership with PERI. There are many programs and ideas that have been assigned to the committees and task forces that have not been able to be completed.

PR: WHAT SKILLS DO RISK MANAGERS NEED TODAY THAT THEY DID NOT NEED IN THE PAST? AL: Every risk manager should do their best to develop: a) communication skills—you need to be able to sell risk management’s

There are many opportunities PRIMA has available for its members and the risk management field, including educational and networking opportunities… I have always

“

to its members. I know that when I first started utilizing PRIMA resources, I did not feel comfortable fully participating in the discussions, providing copies of my policies, or engaging in the process. Over the years, I have realized that there’s not just one way to do things and by utilizing the PRIMA community, it’s possible for you to come out with a different/ better product than you would if you had not incorporated all the available resources.

been grateful to the network of PRIMA members who have provided help and examples regarding questions and challenges that I have faced.

In addition to finishing the work previously assigned, I would like to investigate what PRIMA can do related to cyberliability and risks, and to develop a new task force that will work to identify needed resources for our members. Last year, after the Annual Conference, PRIMA began working with the Department of Homeland Security to promote cyberliability resources available to the public sector. I am hopeful that the task force will be able to develop a strong partnership with Homeland Security for our members.

PR: WHAT IS THE ONE THING PRIMA OFFERS THAT ITS MEMBERS DO NOT TAKE ENOUGH ADVANTAGE OF? AL: PRIMAtalk is probably one of the most under-used resources that PRIMA provides

PUBLIC RISK | MAY/JUNE 2017

Amy Larson, Esq.

value, and when you do that, you become an asset to your organization; b) multi-tasking and stress reduction skills—being able to do many things at one time and not getting too stressed are qualities that will help you be more effective in a time when we are all tasked with doing more with less; c) ability to use technology—face it folks, we have entered an era where the majority of our communications are done electronically—we have to embrace this change; and finally, d) kindness—public entities are not held in the same esteem as they were in the past. How many times do you pick up a phone call and the voice on the other end of the line thanks you for the great job that you are doing? There is a sense of distrust against public entities—it is important that you go the extra mile to diffuse the distrust and be kind in the process.

PR: WHAT CAN PRIMA DO TO SUPPORT THE NEW CHALLENGES RISK MANAGERS FACE?

AL: There are many opportunities PRIMA has available for its members and the risk management field, including educational and networking opportunities. The Annual Conference and PRIMA Institute provide educational opportunities for public risk managers second to none. Both of these offer not only opportunities to reinforce the “basics,” but also offer classes dealing with evolving topics in risk management. The Annual Conference always has sessions on cutting edge and “hot topic” issues that are ever emerging in our world. In addition, PRIMAtalk is great way to ask for help from other risk managers on topics new and old from around the country. I have always been grateful to the network of PRIMA members who have provided help and examples regarding questions and challenges that I have faced.

PR: WHAT ARE THE BIGGEST CHALLENGES RISK MANAGERS FACE IN THE NEXT YEAR? IN THE NEXT FIVE YEARS? AL: Cyber exposures and public distrust are going to be challenges faced by public entities over the next five years. If public entities are unable to adapt the way they approach rapidly changing cyber exposures, we will become targets for hackers and criminals. The same is true for winning back public trust and loyalty. We have to be transparent in our day-to-day dealings, and the number one thought we should have when we do our jobs is what it will look like to John Q. Public.

PR: WHAT IS THE BIGGEST CHALLENGE YOUR OWN ENTITY HAS FACED IN THE LAST 5 YEARS? HOW DID YOU DEAL WITH IT? DID BEING A MEMBER OF PRIMA HELP YOU? AL: One of the biggest challenges my entity has faced in the past five years has organizing solid waste collection. The goal of the City Council was to increase public safety by minimizing the number of garbage trucks driving through an area/neighborhood on garbage pickup day. The city worked with all

of the licensed garbage haulers to make sure that no one would lose market share while standardizing costs to all residents. Who would have thought that having the city step into the process to negotiate the best rates and in turn assign garbage haulers to specific neighborhoods would cause so much angst? We have had two lawsuits and an appeal filed; worked for over six months on the preparation of a contract, only to have it revised within the first year; and departments within the city would process tens of thousands of phone inquiries and personal visits. Change is never easy, but I hope that eventually the residents will appreciate what the City Council had intended with implementation of an organized system. Throughout all of this, and my involvement in the entire process, I was able to reach out to my fellow PRIMA members for assistance when it came to the needs for performance and payment bonds, what type/ limits of insurance are needed for a garbage hauling operations, and basic coping skills of having too many things to do and not enough time to do them adequately.

PR: ALL RISK MANAGERS HAVE HUMOROUS ANECDOTES FROM THEIR YEARS IN THE TRENCHES. TELL US ONE OF YOURS.

AL: My entity supports a number of programs and special events that are held at City-owned facilities throughout the year. One of my favorite gives school children and residents the chance to experience what it would have been like to live on Minnesota frontier from in the 1830-1870 through story-teller and re-enactors. We hire candle-makers, fur traders, blacksmiths, sled dog handlers, bag pipe bands, etc. Unbeknownst to me, one of the stories being re-enacted included a tomahawk thrower that allowed audience participation. (Now, if that’s not a risk manager’s nightmare, I don’t know what is.) I sent out a PRIMAtalk question asking if anyone had any similar experiences and request for guidance. The responses I received were phenomenal! Within days I had a number of ideas on how to reduce our liability risks. I brought this back to our Parks and Recreation department and it was decided that we would limit audience participation to

not throwing the tomahawks, rope off an area to limit children/attendees wandering into the path of the tomahawks, and require a reasonable limit of insurance through a national re-enactors organization. It was a win-win for everyone. BUT, without the help and experience of my PRIMA colleagues, I don’t know if the risk management part of this program would have been a success.

PR: WHAT CAN PRIMA MEMBERS DO TO GET THE MOST OUT OF THEIR PRIMA MEMBERSHIP?

AL: Get involved. Attend PRIMA Institute and the Annual Conference. Volunteer for a committee or task force, I guarantee you will make friends that will last forever! Contribute to the Cybrary or PRIMAtalk and help someone else with their risk management issues just like you’ve been helped in the past. Don’t be afraid to ask questions. Remember, someone

else probably has the same question in mind, but if everyone is afraid to speak up and ask the question, no one gets the answer.

PR: WHERE DO YOU SEE YOURSELF IN FIVE YEARS?

AL: I plan to work at the City of Bloomington until I retire. I love my job and the services I provide to my co-workers and citizens. Our leadership here in Bloomington is second to none, especially with the transformation of the organization to being a High Performing Organization (HPO). We have a City Council that is looking out for the interests of the community as a whole rather than just a few. All of these things make Bloomington not only a great place to work, but a great place to live too. My husband and I have lived here for 19 years, and I don’t expect to move. Amy Larson will be sworn in at PRIMA’s membership luncheon on Wednesday, June 7, in Phoenix, Ariz.

strength in

AN INTEGRATED APPROACH TO SELF-INSURED SOLUTIONS

balance

Experts in coverage solutions for single entities, groups and public entities, our integrated approach gives self-insureds greater stability and control over their self-funded plan. Unparalleled underwriting expertise, innovative risk management and in-house claims management, work in sync and in perfect balance for best possible outcomes.

Since 1990

800.800.4007 midlandsmgt.com publicentity@midman.com EXCESS WORKERS COMPENSATION | PUBLIC ENTITY

MAY/JUNE 2017 | PUBLIC RISK

We’re specialists dedicated to safeguarding public entities with a daily focus on providing property and casualty insurance solutions. Our target classes include: • cities and towns • counties • non-rail transit • public water districts • sanitation districts • fire districts • emergency response • other publicly funded districts

Visit us at booth #222 at the National PRIMA Annual Conference.

Policies may be underwritten by Atlantic Specialty Insurance Company or OBI National Insurance Company.

How you get there matters. You want to drive down your total cost of risk. The best way to do that is to get your injured workers back to health and back to work faster. We call that responsive, responsible care.

Yorkâ&#x20AC;&#x2122;s integrated claims and managed care solution will get injured workers back to health and back to work faster - while effectively reducing your total cost of risk. CL A I M S M A N AGE M E N T | M ANAGED CARE | R ISK MANAGEMENT | LOSS CONT R OL www. YORKRSG .com

CONTINUES TO GROW

and with it Comes Additional Challenges Involving Sober Living Homes BY SARA GATTIE, ROBIN LEAL AND CAROL NICOLETTE

CCORDING TO THE DECEMBER 2016 DATA REPORT from the Center of Disease Control, “…more than 52,000 people died from a drug overdose in 2015. Of those, 33,091 (63.1 percent) involved a prescription or illicit opioid. Since 2000, more than 300,000 Americans have lost their lives to an opioid overdose.” As families and communities struggle to find solutions to this growing epidemic, sober living homes have become part of the discussion. The purpose of this piece is to provide the reader with an overview of these facilities and the potential liability issues that need to be contemplated by city and county officials.

PUBLIC RISK | MAY/JUNE 2017

WHAT IS A “SOBER LIVING HOME” AND IS THIS A NEW TERM?

The concept is not really new. Individuals in our society have suffered from alcohol or drug abuse for decades and often turn to rehabilitation facilities for treatment. The term “sober living home” (SLH) is used to describe a drug-free environment where an individual lives after a drug rehabilitation stay—but a rehab visit regimen is not always required. The SLH can be a neighborhood residence in a local community that permits participating adults to reside in the home while transitioning back into a life routine. Most residents will go to school and/ or work during the day and then return to the SLH for meals and sleeping. It is not much different than the day-to-day activities one sees in any community setting—but, critically, the residents are expected to remain sober as long as they are living in the home.

WHAT ABOUT DRUG COUNSELING OR MEDICAL TREATMENTS?

A SLH is not typically designed to provide either of these services. Instead, the adults living in the home use each other for emotional support during their individual recovery steps, and residents often are required to maintain a sobriety sponsor. Typically, there is an SLH administrator living in each home to ensure the house rules are followed (e.g. room is kept clean, assistance with house chores, the timely payment of rent , work or school schedules are fulfilled, participation in weekly house meetings, and, most importantly, the participants must remain drug and alcohol free). If the participant does not follow the rules, he or she may be asked to leave.

THE SLH’S NEIGHBORS MAY RAISE CONCERNS SUCH AS COMMUNITY SAFETY OR IMPACT TO PROPERTY VALUES. WHAT RULES OR GUIDELINES ARE IN PLACE TO REGULATE AN SLH?

First, there are existing laws. Persons recovering from alcoholism or drug addiction are disabled under both the Fair Housing Act (“FHA”) and the Americans with Disabilities Act (“ADA”) and therefore are afforded

certain protections under federal law. The FHA prohibits a broad range of housing practices that discriminate against individuals on the basis of race, color, religion, sex, disability, familial status or national origin. The FHA prohibits state and local land use and zoning laws, policies and practices that discriminate based on a characteristic protected under the Act. Protected practices include making unavailable or denying housing because of a protected characteristic. Federal courts have found that halfway houses, group homes and sober homes used as residences were dwellings, and as such protected by the FHA. The ADA prohibits discrimination on the basis of a substantially limiting impairment as set forth in ADA Section 3 Definitions. Recovery from a substance use disorder has been considered such an impairment. Regulation of land use and zoning is traditionally reserved to state and local governments, except to the extent that it conflicts with FHA/ADA or other federal laws.

•

• Furthermore, the Joint Statement of the Department of Housing and Urban Development (HUD) and the Department of Justice (DOJ) dated November 10, 2016 addresses legal protections for group homes. In summary, it makes the following points with respect to SLHs: • A local government violates the law if it blocks a group home or denies a reasonable accommodation request because of neighbors’ stereotypical fears or prejudices about persons who live in SLHs. • The FHA does not allow for the exclusion of individuals based upon fear, speculation or stereotype about a particular disability. If, however, there is objective evidence that an individual’s tenancy would constitute a “direct threat” to the safety of others, and no “reasonable accommodation” is available, the individual can be excluded from housing. • Whether a particular accommodation is reasonable must be determined on a case-bycase basis: • Does the request impose an undue burden or expense on the local government? • Or, does the proposed use create a fundamental alteration in the zoning scheme?

•

• If the answer to either question is yes, the accommodation is not reasonable. The FHA does not require local governments to adopt formal procedures for processing reasonable accommodations requests; however, DOJ and HUD encourage the adoption of formal procedures and publication of those procedures throughout the community. Local zoning and land use laws that treat groups of unrelated persons with disabilities less favorably than similar groups without disabilities violates the FHA. Any requirement that SLHs be concentrated in certain areas and restricting them from being located in other areas is a violation of the FHA and the integration mandate of the ADA. Ordinances imposing requirements restricting the number of SLHs that can be located within a certain distance of each other generally are not allowed where such spacing requirements are intentionally discriminatory or the effect is discriminatory. State or local zoning and land use ordinances may not require individuals with disabilities to receive medical, support or other services or supervision that they do not need or want as a condition for allowing a group home to operate. Regulations cannot specifically target group homes and cannot have an “unjustified discriminatory effect.” Local governments may take action in response to criminal activity, insurance fraud, Medicaid fraud, neglect or abuse of residents, or other illegal conduct occurring at SLHs, so long as the actions to enforce the laws are not taken to target group homes and are applied equally.

WHAT ABOUT THE LOCAL ORDINANCES OF A CITY OR COUNTY?

Local residential ordinances like noise control, basic home maintenance and safety issues (low hanging trees/mowed lawns) are enforceable for anyone including a SLH located in a residential area. However because of FHA and ADA protections, a local public entity cannot impose stricter requirements on a SLH than it does any other single family residence.

MAY/JUNE 2017 | PUBLIC RISK

THE OPIOID EPIDEMIC AND SOBER LIVING HOMES

HAS THERE BEEN ANY LITIGATION CHALLENGING SLHS AND WHAT WERE THE RESULTS? There have been several key rulings:

• Jeffrey O. v. City of Boca Raton—In 2007, a federal judge ruled that Boca Raton’s ban on sober homes in residential neighborhoods was discriminatory and violated the Fair Housing Act. The City was held liable for plaintiff’s attorney fees of more than $3 million. 511 F. Supp. 2d 1339 (2007). • A Nevada state statute that established a statewide registry for group homes that was intended to be used for emergency services, and would be made available to the public, was invalidated by the courts. Nevada Fair Housing Center v. Clark County 565 F. Supp. 2d 237 (D. Nev. 2008) • In 2015, Newport Beach, California settled a lawsuit, Pacific Shores Properties, LLC v. City of Newport Beach, No. 11-55460 (9th Circ. 2014), arising from an ordinance approved by the City Council that regulated group homes for recovering addicts—establishing quiet hours, parking and smoking areas and van routes. The ordinance also required the City’s approval for new unlicensed homes for recovering addicts. Plaintiffs alleged that the ordinances violated anti-discrimination and fair housing laws. Plaintiffs’ evidence included comments made during the legislative hearing which implied that the City Council was targeting recovery groups. Following seven years of federal court litigation, the lawsuit settled for $5.25 million and the City reportedly spent $4 million in legal costs.

• Lawsuits alleging constitutional and/or civil rights violations typically include the recovery of attorney fees as a part of the damages award (pursuant to 42 U.S.C. Section 1988). Cities and municipalities therefore could be responsible for large fee awards as well as damages awards upon a finding that the regulations and ordinances are unconstitutionally discriminatory.

IS THERE ANY PENDING LEGISLATION THAT COULD IMPACT SLHS?

Yes. Some states have pending bills requiring mandatory registration and licensing—which can be difficult to coordinate with FHA/ADA/ DOJ/HUD regulations or positions. Other states however are taking moderated approach whereby the SLH voluntarily certifies it meets certain standards, usually around life safety protocols. Seemingly, concerned families would be seeking a certified facility as part of the participant’s recovery process; those SLHs that don’t comply are less likely to be selected by the family member funding the expenses.

HOW DO WE ENSURE SLHS ARE WELL SITUATED IN OUR COMMUNITY?

Not all community opposition to SLHs is discriminatory. The FHA does not prohibit a local government from enforcing its zoning and land use regulations, where that code is not discriminatory or enforced in a discriminatory manner. SLHs differ from a Drug or Alcohol Rehabilitation Facility (ARF) that provides counseling and treatment for addiction. With an ARF, an application and registration process

Ultimately, getting people on the path to improved health makes them productive members of their communities. • Federal courts also have invalidated sober home operator background checks, occupancy restrictions, inspections requirements and any reporting that would function essentially as a registry of housing for protected classes, finding that the bases for such requirements/ restrictions are not premised upon legitimate government interests.

PUBLIC RISK | MAY/JUNE 2017

is often required. Restrictions on the location of the rehab facility (e.g. not near a school for instance), adequacy of on-street parking and structural square footage based on your existing zoning regulations may be applied as long as the regulations are fair and non-discriminatory. Understanding the difference between an ARF and a SLH is key. Before taking any action,

talk with your legal counsel if you receive an application or become aware of a new SLH in your community. Either facility can be challenging and costly if not handled properly. What is the upside to these operations? The biggest beneficiaries of SLHs are those in recovery. Advocates of community-based treatment programs assert that they lead to better treatment outcomes for these participants. SLHs are an extension of this and well-run SLHs are operated by for-profit or nonprofit organizations who have a vested interest to keep their facilities in good working order. From a purely economic standpoint, the facility and its participants will also purchase local goods and services—utilities, educational facilities, food/clothing, barber/coffee shops and the like. And depending on your local and state code structure, you may see an increase in income, property and real estate tax revenue. Ultimately, getting people on the path to improved health makes them productive members of their communities. Some of these adults will become future parents/homeowners and may choose to reside and serve as mentors in the place where they recovered. The key is to understand the complexity of the issues—at the federal, state and SLH operator/participants level—so you can work with your legal counsel to arrive at solutions that address the interests of all parties. Sara Gattie is the 2VP Complex and Excess Claim for Travelers. Carol Nicolette is Senior Counsel for Travelers. Robin Leal is the 2VP Professional Liability for Travelers. The views expressed in this article are those of the author and do not necessarily reflect the views of The Travelers Companies, Inc. or any of its subsidiary insurance companies (“Travelers”). This article is for general informational purposes only. None of it constitutes legal advice, nor is it intended to create any attorneyclient relationship between you and the author. You should not act or rely on this information concerning the meaning, interpretation, or effect of particular contractual language or the resolution of any particular demand, claim, or suit without seeking the advice of your own attorney.

Every community has a story. We help protect it. Travelers has solutions designed specifically for public entities. Our public entity experts work with local communities to design insurance programs tailored to their unique challenges â&#x20AC;&#x201D; from public safety to catastrophic weather to online breaches of sensitive data. We are dedicated to helping communities protect themselves from the unexpected, so that they can continue to tell their stories. To learn more, contact your independent agent or broker.

travelers.com ÂŠ2015 The Travelers Indemnity Company. All rights reserved. Travelers and the Travelers Umbrella logo are registered trademarks of The Travelers Indemnity Company in the U.S. and other countries. 0427 Rev. 6-15

EMPLOYMENT PRACTICES LIABILITY PITFALLS BY DANIEL W. HOUSTON, D.D., ARM

PUBLIC RISK | MAY/JUNE 2017

MPLOYMENT LAW GOVERNS THE RIGHTS AND DUTIES BETWEEN EMPLOYERS AND WORKERS. Employment laws are based on federal and state constitutions, legislation, administrative rules, and court opinions. Employment relationships may also be governed by contract. Contract terms can be based on written or oral assurances.

On the federal level of government, The Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor (DOL), the Immigration and Customs Enforcement (ICE) and the National Labor Relations Board (NLRB) have significantly expanded and increased enforcement efforts. On a state level, many have also adopted fair employment practices and other acts, but also follow federal laws. Federal and state laws were created to: • Prevent discrimination • Promote health and safety • Establish a minimum required level for economic support • Prevent work disruption due to disputes between labor and management Employment Law addresses (although not inclusive): • Workers’ Compensation • Employment Discrimination • Labor Relations • Family and Medical Leave • Immigration • Employee Benefits • Social Security • Wrongful Termination • Occupational Safety and Health • ERISA • Minimum Wage The pitfalls addressed in this first of two articles are (1) termination of employees on probation and “at will” employees, (2) wage and hour laws, (3) third-party liability: customers, clients and vendors, (4) liability of outside committees and boards, and (6) punitive damages.

TERMINATION OF EMPLOYEES ON “PROBATION” AND “AT WILL” EMPLOYEES Many employers mistakenly think that firing an employee on probation is easier and legally safer. However, the majority of states have laws that presume (in light of certain facts) that employment relationships are “at will” and apply at the recruiting process, including advertising for the job—what is said and what is done.

Since “at will” employees are always on probation, having a defined probationary period can actually hurt the employer and can limit its right to terminate a poor performer. That said, employers and employees are usually free to terminate the relationship at any time and for any reason. This presumption could be rejected by demonstrating that both the employer and employee entered into an employment contract (as stated earlier) or made other promises regarding when and how the relationship would end.

WAGE AND HOUR LAWS

Interns cannot be employed on a volunteer basis, except in narrow circumstances. This is an area that the U.S. Department of Labor (DOL) is particularly interested- enforcing wage and hour laws.

AN INTERESTING EVENT… In April 1914, Tom Watson, Sr. (founder of IBM Corporation) was Vice President of Sales at National Cash Register Company (NCR). After a disagreement with John Patterson, NCR’s founder and chairman, Watson’s employment was terminated. Immediately afterwards, Patterson ordered that Watson’s desk be moved to the front lawn of the headquarters building. Patterson personally chopped up the desk, poured kerosene on it and lit a match. Thus the expressions “fired” and “axed.”

Under federal law, an internship cannot be an unpaid position unless it meets all of the following:  The internship is similar to training that would be given in an educational environment;  The internship experience is for the benefit of the intern;  The intern does not displace regular employees and works under close supervision of existing staff;  The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;  The intern is not entitled to a job at the conclusion of the internship; and  The employer and the intern understand that the intern is not entitled to wages (i.e. cash, commissions, allowances, and many fringe benefits) for the time spent in the internship.

MAY/JUNE 2017 | PUBLIC RISK

EMPLOYMENT PRACTICES LIABILIT Y PITFALLS

THIRD-PARTY LIABILITY: CUSTOMERS, CLIENTS AND VENDORS

A separate insuring agreement contained within Employment Practices Liability Insurance (EPLI) policies covers liability claims brought by nonemployees such as customers, clients, and vendors. A recent example is when a Delta airline attendant made a flight announcement asking if there were any doctors on board. Dr. Tamika Cross, who is an African-American OBGYN, says that she immediately volunteered to help. Cross stated, “When I raised my hand to grab the flight attendant’s attention, she said “Oh no sweetie. Put your hand down; we are looking for actual physicians or doctors.” Cross did not file a claim with Delta rather she turned to social media- virtual communities and networks. Third-party Employment Practices Liability Insurance coverage is most often provided under Insuring Agreement B within EPLI policy forms and is subject to a limit that is separate from the limit applicable to Insuring Agreement A. Some insurers offer third-party employment practices liability coverage under a separate endorsement. Types of employment practices claims from customers, clients and vendors include (although not inclusive): • Fraud • Deceptive Trade Practices • False Advertising • Quality of Product • Discrimination • Humiliation • Harassment Commercial General Liability Insurance policies exclude coverage for harassment and discrimination and other related allegations.

LIABILITY OF OUTSIDE COMMITTEES AND BOARDS Many claims come from Citizens Advisory Boards and Public Service Committees.

A Citizens Advisory Board’s general purpose is to provide non-binding judicious advice from a citizen’s perspective. The informal nature of an advisory board gives greater

PUBLIC RISK | MAY/JUNE 2017

flexibility in structure and management compared to a county board of commissioners or city council. Roles of Citizens Advisory Boards include: • providing assistance to the legislative body when formulating public policy • helping transform policy decisions into action • addressing issues of interest or • conducting background work on technical or politically sensitive issues • serving as a way to build public consensus on controversial issues before elected officials make a decision • giving the community a forum for discussion in greater depth than is possible before a legislative body • helping shape the future in areas such as land use, transportation, parks and recreation, libraries, etc. As an example, a large Public Entity employment settlement came from the actions of the county’s outside Citizens Library Board. A federal jury forced four (4) members of its Citizens Library Board to pay nearly $23.3 million in damages for discriminating against eight (8) white librarians demoted from the central library after board members said that “there are too many white faces in management.” The eight (8) librarians were transferred to small libraries, but their salaries were not reduced. The vacated positions were filled by black librarians. The jury did not find any damages against the library system. Jurors found that it was neither the system’s policy nor custom to discriminate against its white employees by transferring them to other library branches. While attorneys for the eight librarians called their demotions “reverse discrimination,” county officials called it a “reorganization” of the library system. On a positive note, a citizen’s group, formed under the direction of Cobb County Chairman Mike Boyce, is tasked with watching over the Braves’ move to SunTrust Park in Cobb County, Georgia. The committee has the authority to observe progress around the new stadium and make suggestions as to what can be improved upon.

THE 14TH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES SECTION 1 STATES: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

PUNITIVE DAMAGES

It is estimated that nearly 20% of all employment liability verdicts include the awarding of punitive damages. When they were introduced several decades ago, almost all EPLI policies excluded punitive damages. Today, punitive damages are silent (not excluded) or are covered within the body of some policies, but are usually added by endorsement. Punitive Damages coverage is expensive. An additional premium of 10% to 25% is usually charged. However, some states prohibit insurance for “punitive damages.” To get around this prohibition, many insurers offer “most favorable venue” provisions if a claim is brought in a state where punitive damages coverage is not permitted. A policy could simply state that the policy will apply in the jurisdiction that most favors coverage for punitive, exemplary and multiple damages. Note: As respects the case cited in the Library Board settlement, of the $23,300,000, compensatory damages awarded were $500,000 and $22,800,000 for punitive damages. Dan W. Houston, D.D., ARM, is the senior vice president, enterprise risk management & principal for EPIC.

Public services

Local connections

#CommunityMR

Connect your community to the source for innovative risk solutions. Nonprofits, schools, public entities and religious organizations support the communities we live inâ&#x20AC;&#x201C;the true social network. Munich Re has worked with public and nonprofit organizations to create innovative insurance solutions and risk management strategies for over 25 years. Our resources, creativity and expertise help to secure a financially stable and safe future for single risks and group risks. Let us be a part of your social network â&#x20AC;&#x201C; #CommunityMR. Learn more at www.munichreamerica.com/alternativemarket

NOT IF, BUT HOW Products and services provided by Munich Reinsurance America, Inc. Princeton, New Jersey

PUBLIC RISK | MAY/JUNE 2017

Don’t SHOOT the MESSENGER:

TIPS FOR DELIVERING BAD NEWS BY RACHEL BEOHM

NE OF THE HARDEST PARTS OF ANY JOB—environmental safety, labor relations, human resources, etc.—is delivering bad news. No one wants to hear that they aren’t getting what they want, that they have to face the consequences of their actions, or that they will be negatively impacted by circumstances they can’t control. And when that happens, emotions run high.

As risk management professionals, you get to do this all the time. Lucky you!

And yet often, we deliver the negative information in a way that screams, “Please get upset at me! I will be the scapegoat!”

“There’s no room in the budget for that this year.” “We’re going to have to let you go.” “What you want to do is not actually legal.” “We’re going to have to follow the process on this.” And then what happens? So often, the messenger (insert your name here) gets figuratively shot. You are simply the bearer of bad news, yet you reap all the ire and acrimony of the other person, even when it’s their own fault!

How can we avoid these pitfalls and deliver those unpleasant messages in a way that keeps us safe and preserves relationships? Here are three nonverbal communication tips for separating yourself from the information.

TIP #1: ACCESS BOTH YOUR POSITION AND YOUR PERSON. In any job, there will be times when you need to access either your Position (your authority as a professional) or your Person (your warmth and unique personality). The trick is to know when each is appropriate. So often, when

MAY/JUNE 2017 | PUBLIC RISK

DON’T SHOOT THE MESSENGER: TIPS FOR DELIVERING BAD NEWS

delivering negative information, our instincts lead us astray! We want to show the person we understand and care, so we lean in and look sad or worried as we say, “I’m so sorry to have to tell you this, but…” Then, once we’ve given the message, in anticipation of the fallout, we turn into Stone-faced Robot Person. (I’ve seen it over and over and over…) This is backwards! And it sets you up for failure. Your nonverbals cue the other person to become worried and agitated before you even open your mouth. And then you shut down the conversation just when they need support. No wonder you end up with a verbal lashing or a fountain of tears! Instead, stay calm, professional, and authoritative while delivering the bad news. It helps if you have something to show the person—a report, a letter, even your own handwritten notes from a conversation—so that the message doesn’t become conflated with you as a person. But be sure the information comes from your Position, not from you as a Person.

Then, once the information is given and you’re ready to share solutions, next steps, or your personal condolences, by all means become a real person again. Make eye contact, nod, listen, express your concern. But whenever you’re discussing the problem, that’s when you want to channel Stone-faced Robot Person. Straight, calm, professional.

TIP #2: GET OUT OF THE LINE OF FIRE.

Many offices and conference rooms are set up so that participants face each other. Sitting (or standing) across from someone is great when you’re out on a date, but fraught with difficulty when the content of your message is negative. For one, you are physically positioned to “take” all the heat. Why not just paint a target on your chest? In addition, when the difficult issue comes up, you nonverbally communicate that you oppose the other person—NOT the message you want to send. Instead of being on opposite sides of a desk or table, sit next to the other person

or at 90°. Again, it helps dramatically if you have a document, computer screen, or other visual aid the two of you can look at together. By sitting at 90° or next to the other person, you communicate, “I’m on your side.” You can address the bad news together as a third entity that is not connected to you. And if a meltdown occurs, it will not be automatically aimed in your direction. Position yourself alongside the other person to depersonalize the situation while still communicating thoughtfulness.

TIP #3: BREATHE. BREATHE. BREATHE.

As simple as it sounds, nothing impacts your ability to deliver negative information effectively as good breathing. Breathe deeply and calmly to communicate safety. Sharp, shallow breathing communicates fear. If you are already in fight-or-flight when you approach someone with bad news, you signal that there is a reason to be upset. The other person will go into fight-or-flight before hearing a word you say. Breathing patterns are contagious: when we breathe poorly, others feel tense; when we breathe well, we help others stay calm. Low, abdominal breathing also gets more oxygen to the logical, thinking part of the brain. You will speak more intelligently and stay rational when you breathe. In addition, how you breathe affects the sound of your voice, your posture and your gestures.

It takes practice, but with these three nonverbal communication tips you can diffuse the tension in difficult situations, deliver the information without taking the fall, and keep your relationships (and your sanity!) in a happier, healthier place.

PUBLIC RISK | MAY/JUNE 2017

Breathing is the #1 way to communicate, “I am not threatened or threatening. We can get through this.” Make a conscious effort to breathe well before AND during stressful situations. It takes practice, but with these three nonverbal communication tips you can diffuse the tension in difficult situations, deliver the information without taking the fall, and keep your relationships (and your sanity!) in a happier, healthier place. Rachel Beohm is a master coach and trainer with FORTE.

PUBLIC ENTITY EXPERIENCED TEAM, ACCOUNT DEDICATED CLAIMS, TAILORED COVERAGE AND RISK CONTROL

PROTECTION, EXPERTISE AND RELIABLE SUPPORT IN AN EVOLVING ENVIRONMENT CLIENTS: • Individual Entities with retentions • Intergovernmental Pools PRODUCTS: • Full range of public entity specific Liability and Professional Liability, including Law Enforcement, and Incidental Medical • Insurance and Reinsurance

WHY BERKLEY PUBLIC ENTITY: • We do not compete against our broker or client partners – we honor commitments. • We frequently manuscript coverage for single accounts – clients like certainty. • Over 96% of clients with claims have renewed – we work together when things get tough. • We invest in client desired risk control – reducing loss for both of us.

For more information, please contact: Berkley Public Entity Managers 30 South 17th Street, Suite 820 Philadelphia, PA 19103

Richard B. Vincelette President T: (215) 553-7366 C: (215) 528-0410 rvincelette@wrberkley.com

Brian T. Whooley Sr. Vice President, Underwriting T: (215) 553-7381 C: (215) 528-0374 bwhooley@wrberkley.com

Stephen D. Dzury Sr. Vice President, Claims T: (215) 553-7382 C: (215) 756-6118 sdzury@wrberkley.com

Products and services are provided by one or more insurance company subsidiaries of W. R. Berkley Corporation. Not all products and services are available in every jurisdiction, and the precise coverage afforded by any insurer is subject to the actual terms and conditions of the policies as issued. Certain coverages may be provided through surplus lines insurance company subsidiaries of W. R. Berkley Corporation through licensed surplus lines brokers. Surplus lines insurers do not generally participate in state guaranty funds and insureds are therefore not protected by such funds. © Copyright 2017 Berkley Public Entity Managers – a Berkley Company. All rights reserved.

PUBLIC RISK | MAY/JUNE 2017

MILLENNIALS, SAFETY and ERGONOMICS

BY KATHY ESPINOZA

illennials are often regarded as being a “different” workforce. However, each generation has had its own quirks, so to speak. Boomers are seen as the long-haired, rebellious hippies of the ‘60s who wanted to challenge the status quo and sometimes still do. They’ve historically occupied the largest cohort in the workforce, but that dominance no longer holds. According to the U.S. Census Bureau, Millennials (age 18–34) surpassed the Baby Boom generation in 2015 by having 75.3 million move into the workforce. Moreover, their numbers are expected to peak at 81.1 million in 2036.

NEW-WORLD HABITS CAN BE HARD TO BREAK

Millennials have grown up in world where technology is pervasive and is moving to mobile devices more and more. The downside is mobile technology enables them to use their devices basically anywhere from the kitchen counter or dining table to in bed or on the couch while gaming or interacting on social media—yet rarely at a workstation. As a result, they’ve lived and developed poor, slouching posture ever since they were old enough to turn on the device.

let comfort be their guide, but this guideline doesn’t apply with Millennials. Unfortunately, they are now accustomed to poor posture, and a new posture at the workplace can feel awkward. That’s why education on ergonomics becomes so essential. But a “because I said so” attitude from the employer doesn’t work when trying to have Millennials pay attention to their posture. They need information to understand and accept why it’s important. The usual risk factors for injury have not changed. It’s the omnipresent exposure to technology that’s new.

The fundamental concern with new Millennial workers is that what may seem normal to them is in reality a high-risk posture that’s simply not good for them. We typically tell employees to

One of the big changes with Millennials is the fadeout of old-school touch typing. Business typing, and even computer keyboarding, are not taught in schools as much anymore. That leads

MAY/JUNE 2017 | PUBLIC RISK

MILLENNIALS, SAFET Y AND ERGONOMICS

to a hunt-and-peck method, forcing users to type with their head down for extended periods of time, which can become painful.

UNDERSTAND INTRINSIC NEEDS

Other common Millennials traits to address include: Feedback. More than any other, the Millennial generation craves feedback. In contrast, Boomers are used to annual performance evaluations. But Millennials need it much more frequently. So schedule monthly visits with a new hire for the first few months and ask them about their workstation setup. You’ll connect with them and can gauge how they’re doing. Keep in mind that their parents were very attentive to their “specialness,” and they may expect that from their boss. Take the time to listen. Immediate Satisfaction. Technology in the palm of a Millennial’s hand allows immediate answers to life’s questions. In terms of ergonomics, offer a selection of devices, keyboards, mice, monitor stands, etc., that they can try out immediately. Most ergonomic equipment offers a free trial period. Make sure your vendors respond quickly to purchase orders, so you can deliver quickly on your equipment recommendations.

to listen to and consider their ideas for making work processes smoother. Another tremendous characteristic Millennials exhibit is a strong civic mindedness in wanting to do the right thing, for the right reasons and build a better world. That drive is excellent news since, as employees, they believe in giving back to communities which can enhance the organization’s brand image.

IMPLEMENT SAFETY AND WELLNESS STRATEGIES

What’s important is to address ergonomics, safety and wellness up front in the onboarding process for new hires. And the sooner, the better, before bad habits set in. Since Millennials began early with terrible technology-based behaviors, they’ve gotten used to them. In fact, many are coming into the workforce with levels of pre-MSD (musculoskeletal) injury that most employees don’t experience until after 10 or 20 years on the job. After-work activities must be addressed as well. According to Common Sense Media (2015), the average teen logs nine hours each day on his or her device. Add that time to their new job working on a computer, and it’s a “claim-ready” situation. Some proactive strategies to consider include:

What’s New. It’s a very tech-savvy group that loves having the latest and greatest devices. Stay on top of new ergonomic equipment coming out and the research behind it. A great resource is the annual National Ergonomics Conference that has hundreds of vendors and products on display.

CAPITALIZE ON THEIR STRENGTHS

That said, Millennials do bring many strengths to the workforce. For example, having worked in classroom groups or teams, they assimilate well within departments and when working on team assignments. A high familiarity with technology enables them to understand and accept online types of training more readily. They also accept that technology changes frequently and applaud upgrades and new systems they can discover. In other words, where Boomers had to adapt to technology, Millennials were born into it and embrace it. They are also a very creative group and can bring excitement to the workforce by asking, “Why do we do it that way?” So it makes sense

PUBLIC RISK | MAY/JUNE 2017

Wellness. Ergonomics should become a fundamental aspect of your wellness program and vice-versa. That’s because, although a healthy employee still can become injured, their recovery time will be quicker. Onboarding. Make ergonomics, safety and wellness an integral element in new hire orientation. For example, the longer it takes to help them set up their workstation, the longer their bad habits will solidify and affect your organization. Involve IT. This means also training your IT team on proper workstation set up when delivering computer, mouse, keyboard, etc., for a new employee. Do not wait until a Millennial complains of pain before addressing proper ergonomics. Purchasing. Keep your purchasing department up to speed with well-proven ergonomic solutions. Don’t ever allow employees to simply buy what they think they need. Not all products displaying an “ergo” label are valid.

Online Training. It’s the preferred learning method for Millennials. They often find classroom-style training to be boring and frustrating to them, which can easily turn them off. Their brains move faster than other generations of workers, constantly striving for new, readily-accessible information. They move quickly from screen to screen, often with loud music or other media in the background. As trainers on ergonomics, safety and wellness, we need to jazz up the experience to appeal to this faster-paced generation. Online ergonomics training works well to help triage and prevent problems sooner rather than later.

DISCUSS AFTER-HOURS ACTIVITIES

In the past, bringing work home was rare, as was becoming consumed with technology after work (Facebook, Messaging, Instagram, Solitaire, Candy Crush Saga). In the days of pre-mobile technology, people mowed the lawn, puttered around the house and talked to each other, eye to eye after work. Today, Millennials tend to get home and play games for hours on end. For all of us, the boundaries between work and home are more blurred than ever because it’s easy to review work emails and projects at home, on our handheld devices. This is an important phenomenon because it makes it harder to determine where the injury actually occurred. It’s crucial to talk to Millennials about what they do at home and how they can create a safer and more comfortable environment to prevent injuries.

SHARE THE ERGO LOVE

Also remember that Millennials grew up in an “everybody gets a trophy” world. If you provide an ergonomics evaluation to one individual, you should be prepared to help everyone else in that immediate work area. If an employee claim results in a secondary gain like a new sit/stand workstation, better keyboard, new mouse, new chair, etc., you may encounter a case of “ergo envy” with others putting in claims just to get new equipment. So share the ergo love around the office and take the time to adjust monitors and chairs. Let everyone know they’re important. Kathy Espinoza, MBA, MS, CPE, CIE is a boardcertified professional ergonomist and assistant vice president, ergonomics and safety, for Keenan.

ADVERTISER INDEX

ADVERTISER INDEX Berkley Public Entity Managers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 23 Genesis Management and Insurance Services Corporation. . . . . . . . . . . . . . . . . . . . . . . Back Cover Midlands Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 9 Munich Reinsurance America. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 19 Old Republic Insurance Group. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inside Front Cover One Beacon Government Risks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 10 States Self-Insurers Risk Retention Group, Inc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inside Back Cover Tokio Marine HCC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 2 Travelers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 15 York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 11 HAS YOUR ENTITY LAUNCHED A SUCCESSFUL PROGRAM? An innovative solution to a common problem? A money-saving idea that kept a program under-budget? Each month, Public Risk features articles from practitioners like you. Share your successes with your colleagues by writing for Public Risk magazine! For more information, or to submit an article, contact Jennifer Ackerman at jackerman@primacentral.org or 703.253.1267.

REGISTRATION OPENS JUNE 1

CALENDAR OF EVENTS PRIMA’s calendar of events is current at time of publication. For the most up-todate schedule, visit www.primacentral.org.

WEBINARS 2017 • May 17 – Loss Control Self-Audits for Public Entities • June 21 – Successful Methods for Reducing Slips, Trips, and Falls • July 19 – How Organizational Culture Affects Risk Management • August 16 – Current Trends in Law Enforcement Liability Claims • September 13 – The Nuts and Bolts of Contract Risk • October 18 – Cyber Risks, Cyber Coverage, Tech E&O Risks and Coverage • November 15 – Risk Analysis, Assessing Your Key Risk Indicators: Are You Lagging Behind, or Leading the Pack? • December 20 – Mission Critical: ERM and Decision Making

PRIMA ANNUAL CONFERENCES June 4–7, 2017 PRIMA 2017 Annual Conference Phoenix, AZ Phoenix Convention Center June 3–6, 2018 PRIMA 2018 Annual Conference Indianapolis, IN Indiana Convention Center June 9–12, 2019 PRIMA 2019 Annual Conference Orlando, FL Gaylord Palms June 14–17, 2020 PRIMA 2020 Annual Conference Nashville, TN Gaylord Opryland

October 9–13, 2017 • San Antonio, Texas

PRIMA INSTITUTE October 9–13, 2017 San Antonio, TX

MAY/JUNE 2017 | PUBLIC RISK

IN PHOENIX, RISK MANAGEMENT WILL

BY JENNIFER ACKERMAN, CAE

n June, more than 1,000 public risk professionals will gather in Phoenix for PRIMA’s 2017 Annual Conference. This annual event is the ONLY conference dedicated to risk management in the public sector. What’s on tap for this year’s conference?

THE LONG AND SHORT OF IT

This year’s educational sessions fit your learning style. Want more in-depth information on a topic? PRIMA’s conference has 2.5 hour sessions that provide detailed information on realizing the real risks your organization faces, for example. For quick “bites” of learning, PRIMA offers 30-minute “cram” sessions. These quick learning labs give you enough information to make a difference when you head back to the office. The best part? All cram sessions will be offered on both Monday and Tuesday, so if you miss one, you’ll get a second chance.

ATTENDEES WILL HAVE FUN DOWN TO A “SCIENCE”

THANK YOU TO OUR SPONSORS! Thank you to our generous sponsors for their continued support of public sector risk managers.

PLATINUM

GOLD

SILVER

Every year, PRIMA offers a memorable, one-of-a-kind social event to cap the second day of the conference. This year, we’ll visit the Arizona Science Center as we can grab a drink and tour the museum before getting down to a live band. It’s always the highlight of the conference!

EYE-OPENING GENERAL SESSIONS

Each morning kicks off with engaging general sessions from speakers who understand risk managers and the challenges of their jobs. This year’s sessions include David Wulf, from the Department of Homeland Security, who will speak on the real threats to the nation’s power grid. As always, PRIMA’s conference will offer engaging topics from industry experts. It’s the can’t-miss event for public entity risk practitioners.

PUBLIC RISK | MAY/JUNE 2017

BRONZE

PATRON

STATES SELF INSURERS

COMBINATION OF COVERAGE, STABILITY AND

SPECIALIZED

SERVICES TO MEET THE UNIQUE NEEDS OF PUBLIC ENTITIES. THEIR

DEDICATED SUPPORT AND PARTNERSHIP GIVE MURRAY CITY

CONFIDENCE DURING THE EVER-CHANGING ATMOSPHERE OF PUBLIC ENTITY LIABILITY.” JORDAN KNIGHT risk manager

murray city corporation, utah

states member-owner over

28 years

MEMBER-OWNER

STATES OFFERS THE PERFECT

“

STATES OFFERS YOU: • A BROADLY INTERPRETED EXCESS LIABILITY COVERAGE FORM THAT IS SECOND TO NONE IN THE INDUSTRY. • PREMIUM STABILITY AND SOUND FINANCIAL RESULTS FOR OUR PARTNER MEMBERS – MEMBER PREMIUMS ARE INVESTMENTS IN THEIR OWN COMPANY. • EXCELLENT CLAIMS AND LOSS CONTROL SUPPORT, INCLUDING ON-SITE.

Visit us at PRIMA in Booth 325

• SPECIALIZED PUBLIC ENTITY-ORIENTED SERVICES FROM EXPERIENCED, SERVICE-DRIVEN PROFESSIONALS.

FOR INFORMATION CONTACT: STATES SELF-INSURERS RISK RETENTION GROUP, INC. AT 1-800-640-0345, EXTENSION 3310, OR VISIT OUR WEBSITE AT WWW.STATESRRG.COM

hil e vis at P OT it us aRIMA H t ,

SURPRISED? DON’T BE.

You’ve relied upon our financial security and underwriting skill for a long time.

Visit our website at www.GenesisInsurance.com

And along the way, you’ve challenged us to do more. Well, we’ve been listening, and we’re proud to announce a new, more “can do” approach to your business. We’re actively seeking expanded opportunities. So whether you’re seeking broader coverage, new jurisdictions, or aggregate deductibles, we’re listening. Don’t be surprised when you hear: “Sure, we can do that.” Let’s talk. You may be surprised, but not for long!

Genesis Insurance Company is licensed in the District of Columbia, Puerto Rico and all states. Genesis Insurance Company has its principal business in Stamford, CT and operates under NAIC Number 0031-38962

A.M. Best A++ XV

S&P AA+

A Berkshire Hathaway Company