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VACANT BUILDINGS, PROTECTION MIGHT BE VOID

If you're the owner or tenant of a commercial building, you should know something: Your Building or Personal Property protection might become void if the property is left vacant.

Over the years, the vacancy clause in many Property policies has been modified to better reflect the increased hazard a vacant building represents. Under the terms of the policy, a vacant commercial building isn't covered for certain perils and is only partially covered for others.

These perils, which are very likely to happen to vacant property, won't be covered:

  • Vandalism
  • Sprinkler leakage (unless the sprinklers were properly adjusted to prevent freezing )
  • Glass breakage
  • Water damage
  • Theft and attempted theft
Other losses may get you reimbursed at 15% less than you would have received had the building been occupied.

"Vacant" for a tenant means that there's not enough business personal property in the tenant's space to conduct customary operations. For an owner, the building is considered vacant when 70% of it isn't rented or used for customary operations. While under construction or renovation, the space isn't considered vacant.

If your policy is based on the current Insurance Service Office (ISO) form, coverage for the building you own won't be denied until it has been vacant for more than 60 consecutive days before the loss. For tenants, this is true of the leased area rather than the entire building. Commercial insurance policies are complex contracts designed to meet the needs of the typical tenant or building owner operating under typical circumstances. Vacancy of more than 60 days is not a typical situation, which is why coverage is restricted - unless you take steps to extend your insurance via an endorsement or another policy.

So be warned: If your space will be vacant for more than 60 days, call us so we can rework your coverage.

 

DISHONEST EMPLOYEES: All It Takes Is One
from imms.com

Small businesses can be more vulnerable to embezzlement than large companies because small-business employers tend to have closer, more trusting relationships with their workers (who are sometimes also friends or relatives). Small businesses also tend to have fewer controls and more informal bookkeeping procedures.

The best way to maintain good relations with your employees and protect yourself against embezzlement is to have controls in place - and to let your employees know that the books will be audited regularly. The friendships can begin once these ground rules are clear:

  • Keep recording and money handling separate by having different employees handle each task, perhaps doing one of them yourself.
  • Keep accurate records. A good computer program is a great help in keeping information current, but remember that technology can complicate the system. More than one person should understand what's going on. The businessowner should know the system backward and forward. Passwords should be used, changed regularly, and known only by the people you designate.
  • Insist that your accounting employees take vacations. It's a red flag when money-handling and bookkeeping employees are reluctant to take time off from the books, even when it looks as though they're just being conscientious.
  • Monitor the books regularly and let your employees know you'll be doing it. A lazy or distracted businessowner invites embezzlement.
  • Double-sign checks. If you allow the bookkeeper to sign checks, also require your own signature or that of another principal. The safest method of all, especially for a very small business, may be to have only one signature: yours. The bookkeeper can make out the checks and send them to you for signing.
  • Show yourself to be honest. Set the standard for honest dealings with your employees, suppliers, and customers, and your employees may follow your lead.



AGENTS FOR CHANGE: WE CAN MAKE THE WORKPLACE SAFER
by Arthur Moll

More agent involvement in safety programs can be the single most important way to reduce accidents in the workplace.

Small companies—those with 50 employees or fewer—now make up 95% of all American businesses. Many are so focused on getting the product out the door and meeting bottom-line objectives that they don’t have the time or resources to develop safety programs. Insurance agents can be the safety and loss-control managers for these employers.

Establishing the agent for this proactive role requires a change in our thinking, but the rewards can be unlimited. The agent is close to the employer and sees him or her regularly—and thus can provide a fresh pair of eyes to identify hazards. That’s only the beginning. I encourage a more hands-on approach to safety. Agents can make a real difference by helping the employer establish safety committees.

Why is this important? Studies show that 90% of all accidents are caused by employees rather than by faulty equipment or conditions. Turning over the responsibility for safety and accident prevention to employees, through safety committees, is the only sure-fire way to achieve lasting results.

Through my experience, I am more convinced than ever that the only successful approach to safety is to implement an employee-centered program. The agent can be the catalyst who makes this happen.

The employee safety committee needs direction from an outside, independent coordinator, and should be made up of nonsupervisory personnel. The people closest to a problem are best able to find practical, cost-effective solutions.

Managers sometimes believe that employees lack the sophistication necessary to develop solutions. However, the safety committees I have worked with have produced excellent results. Indeed, workers such as assemblers, sweepers, maintenance people, sales clerks, stock clerks, and cashiers are valuable assets for identifying unsafe conditions and making recommendations that improve productivity and quality.

One of my industrial clients told me that communication with the work force had greatly improved since the start of the employee safety program.

I approach safety in an orthodox way. Approximately eight employees meet once a month for an hour. We review accident reports to pinpoint the accidents’ causes, and make recommendations for corrective action. We walk around the facility on an inspection tour identifying hazards. During the tour, we solicit employees’ views and suggestions about safety.

For example, employees were having difficulty continually transferring boxes containing 40 pounds of chocolates from the production line to a staging area. There was no room to install a conveyor. Someone on the committee suggested getting plastic buckets to transport 20 pounds of product, thereby halving the weight load. A simple solution, but who in management would have thought of it?

Another powerful reason for agents to become involved in safety committees is that they can influence management action. For example, who would believe that a department store could be fraught with hazards? Greater emphasis is placed on generating sales than on the safe operation of the stock areas. With their broken ladders, cramped space, improper shelving, poor lighting and other hazards, stockrooms are often accidents waiting to happen. I explained to management that a back injury can cost $20,000 and asked, "How many new ladders can be bought for $20,000?" They listened and acted.

As the spotlight on workplace safety intensifies, several state legislatures have created mandatory safety programs for employers that have adverse experience. My fear is that some employers will take the path of least resistance and give lip service to implement a program, along with a fancy safety handbook that just gathers dust. This approach will yield few or no long-term results. Paper programs and written missives have never worked.

Management support is by far the most important element of a successful workplace safety program. Without a genuine commitment from management to do what’s necessary to prevent accidents, the best program is doomed to failure. Management must also ensure 100% employee involvement or the program will not be effective.

Safety and accident prevention have to be an integral part of what I call the "magic triangle" of any enterprise: production, quality, and safety. I believe that they’re interrelated. Without a strong safety component, productivity, quality, and certainly profitability will suffer. Therefore, we must integrate safety into the hiring, orientation, and training processes.

In today’s environment, safety can no longer be considered a staff function with only safety professionals responsible for results. In smaller enterprises, the agent can become a major influence in molding these elements together.

The effort should be made not just for the sake of safety, but to improve morale. For instance, a sanitary district had special trucks to pick up heavy items, such as refrigerators and washing machines, but did not supply its workers with hand trucks. The workers had to move heavy items manually from the curb to the truck—not a safe environment. The employees thought I was a "miracle man" when the district’s commissioners followed the recommendation of the safety committee and purchased hand trucks. When safety is employee-driven and the results are evident, all employees see the improved conditions and realize that management is committed to providing a safe workplace for them.

How can we spread the word that safety affects a business’ bottom line? I’d like to try an experimental seminar program, geared toward the smaller employer. It could be an after-work program, in which many agents would bring their clients to a central location. We could have presentations by safety experts, the state labor department, companies, OSHA, AFL-CIO, and so on, and show financial data that demonstrates what happens when a safety program is implemented (or what it costs when safety is ignored).

A two-unit department store saved more than $1,250,000 in the first two years on their retrospective rating program. A sweater factory went from $470,000 in paid claims and reserves for two years prior to the initiation of a safety program to only $45,000 after the program’s first year. Similar results were achieved at a manufacturer of vibration-isolation equipment.

The traditional agent’s role has been to write the policy and handle accident reports. I believe that agents can become proactive missionaries for safety and loss prevention. Imagine, we could have 20,000 missionaries preaching that the "the cheapest accident is the one that never happens." Think of the possibilities!

Arthur I. Moll, CPCU, CIC, is president of the National Association of Professional Insurance Agents (Pia) and president of Compaudit Services, a firm that helps companies reduce Workers Comp costs. He’s also a professional member of the American Society of Safety Engineers.

 

BACK INJURIES:
THE NATION’S NO. 1 WORKPLACE SAFETY PROBLEM

by Bill Grieb

The winner in the competition for worst workplace safety problem goes to back injuries. Preventing back injuries is thus a major workplace safety challenge.

Back injuries account for one in every five workplace injuries or illnesses, according to the Bureau of Labor Statistics (BLS). What’s more, one-fourth of all compensation indemnity claims involve back injuries, costing industry billions of dollars on top of the pain and suffering borne by employees.

Although lifting, placing, carrying, holding, and lowering are involved in the manual handling of materials (the principal cause of compensable work injuries), the BLS survey shows that four in five of these injuries were to the lower back, and that three in four occurred while the employee was lifting.

No approach (other than pure laziness) has been found for totally eliminating back injuries caused by lifting, but a substantial portion can be prevented by an effective control program and ergonomic design of work tasks.

In a recent study, it was determined that up to one-third of compensable back injuries could have been prevented by better job design (ergonomics). Other factors affecting injury rates include frequency of lifting, duration of lifting activities, type of lifting, age, sex, body size, state of health, and general physical fitness.

OSHA is considering ways to help employers and employees reduce these injuries, looking at both administrative controls and engineering controls. The former includes carefully selecting and training workers so they can safely perform lifting tasks. Engineering controls attempt to redesign a job so lifting becomes less hazardous. Recommended approaches include the NIOSH WORK PRACTICES GUIDE FOR MANUAL LIFTING, which employs an equation using horizontal location, vertical location, vertical travel distance, and lifting frequency (see below).

Another approach would set a maximum weight limit for any single lift, or a load-moment limit based on the distance of the load from the worker’s body. Tables of maximum weights for different percentiles of male and female workers have also been proposed.

Administrative controls include:

  • Strength testing of existing workers (discouraging the assignment of workers to jobs that exceed their strength capabilities), which one study showed can prevent up to one-third of work-related injuries
  • Training employees to utilize lifting techniques that place minimum stress on the lower back Physical conditioning or stretching programs to reduce the risk of muscle strain
  • Engineering controls include:
  • A reduction in the size or weight of the object lifted. The parameters include maximum allowable weights for a given set of task requirements, the compactness of a package, the presence of handles, and the stability of the package being handled.
  • Adjusting the height of a pallet or shelf. Lifting that occurs below knee height or above shoulder height is more strenuous than lifting between these limits. Obstructions that prevent a body’s contact with the object being lifted also generally increase the risk of injury.
  • Installation of mechanical aids such as pneumatic lifts, conveyers, or automated materials-handling equipment.

    Back injuries are more often the result of chronic injury than one specific incidence. Causes may include twisting at the waist, lifting with straight legs, repetitive bending and reaching, awkward postures, heavy objects below the knees or above the shoulders, and excessively heavy objects. These are other factors:

    PERSONAL FACTORS
  • Skill and knowledge
  • Lifestyle practices
  • Age and experience
  • Pre-existing conditions
  • Physical fitness
  • Fatigue
  • Mental preparedness
  • Stress: physical, mental, emotional

    WORKPLACE FACTORS
  • Job tasks
  • Staffing levels
  • Work schedule
  • Equipment
  • Safety training
  • Lack of safety budget
  • No fitness programs
  • Health culture/environment

    ENVIRONMENTAL FACTORS
  • Exposure: cold weather, heat, etc.

    ERGONOMIC FACTORS
  • Duration of work
  • Awkwardness
  • Hard forces
  • Vibration
  • Contact stress: using hand as hammer, kicking, etc.
  • Control over pace

    SOLUTIONS
  • Skill development
  • Lifestyle alterations
  • Local program support
  • Wellness programs
  • Safety programs
  • Modification of facilities and equipment

    NIOSH WORK PRACTICES GUIDE FOR MANUAL LIFTING

    NIOSH (National Institute for Occupational Safety and Health) offers the NIOSH WORK PRACTICES GUIDE FOR MANUAL LIFTING (NTIS PB (821) 789-48, cost $17.50) from The National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161.

    Here are some of its guidelines:

    Lifting Boundaries

    "Below the Action Limit." This term represents nominal risk to most industrial work forces. More than 99% of male workers and 75% of female workers can lift loads up to the Action Limit. Lifting in this range is acceptable.

    "Between the Action Limit and the Maximum Permissible Limit (MPL)." When exceeding the Action Limit, compression forces on the lower back are more than 770 pounds, which most young and healthy workers may tolerate. Administrative controls or engineering controls are required.

  • "Above the Maximum Permissible Limit." When exceeding the Maximum Permissible Limit, compression forces on the lower back exceed 1,430 pounds. Only 25% of male workers and 1% of female workers can perform at this level. Both administrative and engineering controls are required for lifting in this region.

    Calculations


    Action Limit (AL) in pounds is algebraically represented by:

    AL (#lb) = 90 (6/H)(1-0.01|V - 30|) (0.7 + 3/D) (1-F/Fmax)

    where:

    H = Horizontal location (in inches) forward of midpoint between ankles at origin of lift

    V = Vertical location (inches) at origin of lift

    D = Vertical travel distance (inches) between origin and destination of lift

    Fmax = Average frequency that can be sustained

    MPL = 3 x AL

    For the purpose of this guideline, these variables are assumed to have the following limits:
  • H is between 6 inches and 32 inches. Objects cannot, in general, be closer than 6 inches without interference with the body. Objects further than 32 inches cannot be reached by many people.
  • V is assumed between 0 and 70 inches, the range of vertical reach for most people.
  • D is assumed between 10 inches and (80 - V) inches. For travel less than 10 inches, set D =10.
  • F is assumed between 0.2 (one lift every 5 minutes) and Fmax. For lifting less frequently than once per 5 minutes, set F = 0.

    Application of the NIOSH guide to lifting tasks assumes the following:
  • Lifting tasks is two-handed, smooth, and in front of the body, with moderate-width loads and unrestricted lifting postures. Moderate-width loads are those that do not substantially exceed the body width of the lifter.
  • No twisting occurs during lift.
  • There is a minimal amount of other manual material handling, such as pushing, pulling, carrying, and holding.
  • One-hand lifts are not evaluated with this approach.
  • Temperatures outside the 60- to 70-degree range (F) may increase risk of injury.

    The computed values of the Action Limit and Maximum Permissible Limit are used by the CSHO as a guide to estimating risk. The numbers by themselves do not identify a hazardous activity. The employer’s incidence of injuries and development or lack of programs for training, work-practice controls, and engineering controls are elements used to determine the seriousness of the hazard.

Reprinted with permission from Safety Information Currents, Volume V, Number 4.

EMPLOYEE MOTIVATION
by Bill Grieb

Most workplace accidents occur in "safe" workplaces, because of employee error.

What can you do? The answer is employee motivation.

This article tells you how to develop and implement an employee-motivation program. All the effort will be worthwhile if only one accident is averted.

Employee Motivation

Sometimes injuries are caused by a lack of appropriate safety equipment or unsafe processes and procedures. Workplace safety laws have been established to correct these types of problems, but another, perhaps more pervasive cause of workplace injury is employee error.

An employee may take unnecessary risks without a second thought—even when the employee had been trained in back safety, had access to a safety belt, and had been warned of the risk. The toll might be a serious back injury.

Why do employees minimize their estimates of risks? Why do they ignore dangers?

The injured employees’ excuses are both related and unrelated to their work.

Some job-related excuses include:

  • "I’ve picked up bigger boxes than this before without hurting myself."
  • "Back belts are for pansies."
  • "I’m too busy to stop and get a belt."

    In these cases, the employees did at least consider the possible dangers of lifting and the use of protective gear. Excuses that aren’t related to the job include:
  • "I’m pissed at my spouse. My kids are a pain."
  • "How am I going to get my car fixed? Where will the money come from?"
  • "What should I wear tonight? Do the Joneses like asparagus?"
  • "I sure need a cigarette. When’s my break?"

    In these examples, the employee was distracted by other concerns. Firms must develop an employee motivation program to reduce these dangerous distractions. The purpose of a safety program is to help workers understand the importance of your company’s goal of having no injuries on the job.

    The first step in an effective safety motivation program is marketing. You must instill in your workers the value of safety, communicating a commitment to safety and motivating supervisors and employees to think and act safely.

    Rather than emphasizing management and control of responses to injury or illness, your business should concentrate on accident prevention and promotion of safety.

    Employee-Motivation Programs

    You must sell management on the importance of supporting an employee-motivation program. They must commit to costs, promotions, and the total employee-motivation effort.

    While employee motivation programs have been shown to provide one of the best saving-to-cost ratios of any activity, the price isn’t negligible. If your program saves $25,000 on Workers Compensation, a portion of the savings won’t automatically be diverted toward funding your program. Management must agree to provide money to continue the program, the value of which will be a reduction of costly accidents on the work site.

    Ingrain in your workers the behaviors and priorities of a safe culture by promoting safety awareness. Remember, the rate of return for an effective safety program can be $4 to $10 for every dollar invested.

    You need to:
  • Set goals
  • Reward success

Acknowledge failures

Provide Training

Employee motivation job isn’t complete until the paperwork is done. Training must include program evaluation and trainee feedback. Supervisors and employees alike should be trained.

Pass some of the savings on to employees.

A variety of motivation programs are based on such incentives as rewards, contests, and premiums. The key is to publicize rewards. Lottery tickets, selected gifts, savings bonds, and cash have all been used as effective rewards. But none of these will be effective without the basic structure of a Workplace Safety Program.

Absenteeism

The average employee took seven unscheduled absences in 1995, compared to six in 1992. Of these, half are for personal illness and one fourth for family issues. The remainder were for reasons such as stress and feeling entitled to use the days off.

Companies have different ways of handling this problem: Some reward employees for sick days not taken, while others lump together vacation, sick, and personal leave days. The goal is to motivate employees to schedule days off in advance, so that the company can plan around their absence.

Happy Workers

Studies show that attitude is one of the most important factors contributing to Workers Compensation and health care costs of employees. A study of 3,000 Boeing employees found a strong association between back-injury reports and work perceptions. Those who "hardly ever enjoyed their work" were twice as likely to file a Workers Compensation claim as those who "almost always enjoyed their work."

A study of telephone operators found that job-related injuries increased when such psychological factors as worries about job security existed—even when the employer took every precaution to protect the workers. A study at Steelcase found that dissatisfied workers were 43% more likely to have a high number of medical claims than satisfied workers. The implications are obvious: Safety and health programs must be integrated into the corporate culture. If these programs are part of a corporate mentality that appreciates the employees, they will succeed. Treatment of employees affects not only the number of Workers Compensation claims filed, but also how quickly employees return to work after an injury.

Incentive Programs

A safety incentive program can augment a workplace safety program. It will not take the place of an effective incentive program. The program should highlight and reinforce goals, not be vague and general. For example, references to "no recordable accidents" may lead to hiding or not reporting minor injuries, and failing to correct problems—all of which may result in future major accidents.

Some organizations use a percentage of Workers Compensation savings to fund incentive programs. Rewards vary from catalog items, first aid kits and other safety items to lottery tickets, cash, and plaques. Your safety committee can define the program and rewards, since it will include workers and supervisors as members. The program should be clear, achievable, measurable, and easily communicated. Its duration and who is covered should be specified in writing, as should its budget.

This article was reprinted with permission from Safety Information Currents, which is published by System Interface Consultants in Santa Monica, CA, at (310) 454-2100.

 

DRUG-USE AWARENESS INCREASES PROFITABILITY IN SMALL FIRMS
WORKING PARTNERS

The Profit in Reassembling Human Assets

  • Small businesses account for close to 50 percent of private-sector output in the United States and an estimated 39 percent of the Gross National Product (SBA Report to President, 1992).
  • The manufacturing segment’s industrious work force, although frequently small in size, represents its most valuable and underdeveloped asset. The manufacturing industry draws its work force from one of the fastest-growing sectors of the population, the pool of 18-to 30-year-olds with a high school education. This group also exhibits the heaviest use of alcohol, cocaine, marijuana, and heroin (NIDA, 1991). By joining or investing in support programs that help their workers prevent or overcome substance abuse problems, large and small manufacturers help themselves maintain a competitive edge in the dynamic world market.
  • Award-winning manufacturers recognized by INC. magazine as star performers are also leading the way in giving special attention to employees through worker support programs. This attention pays off by improving worker morale, and retaining the profit otherwise lost in nearly 1 million drug-related industrial accidents (Karol, 1991).
  • This finding supports the conclusions of a recent survey showing impact on job performance as the primary motivation for having a substance abuse policy. The Small Business Administration estimates that every dollar invested in an employee assistance program saves $16 in productivity by reducing health care costs (Moore, 1992).
  • A study by the Project for Substance Abuse Assistance - a coalition of Printing Industries of America, Graphic Arts Employers of America, the American Newspaper Publishers Association and the Graphic Communications International Union - found that more than one-half of respondents co-workers with substance abuse problems should be helped and given the time to recover. Overwhelmingly, respondents said that "more information on alcohol and drug problems" would be the most helpful way to assist co-workers (PIA, 1990).

    What Working Partners Can Do For You

    The U.S. Department of Labor’s Working Partners Initiative has been developed specifically to help manufacturing industry supporters deliver helpful information to the small businesses that depend on their support. This package contains the benefits of research on the manufacturing industry to discover the hidden assets, the problems, and the solutions that successful entrepreneurs in your industry have developed to protect and promote their businesses.

    Reference List
    U.S. Small Business Administration, The State of Small Business: A Report to the President, Washington DC,: U.S. GPO, 1992.

    National Institute on Drug Abuse. National Household Survey on Drug Abuse: Main Findings, 1990, DHHS: 1991.

    Karol, Michael, ed. "The Lows of Being High," Graphics Arts Monthly (September, 1990):101.
    Moore, Wendell R., The U.S. Department of Labor, U.S. Small Business Administration & the Office of National Drug Control Policy, Working Partners National Conference Proceedings Report. Washington DC: U.S. GPO, July 13-14, 1992, 65-66.

    Printing Industries of America,Inc. "Industry Substance Abuse Concerns Highlighted," Human Resources (March 1990).

 

RECENT SEXUAL HARASSMENT DECISIONS:
NEW RISK AND NEW DEFENSES

by Francis Willmarth

The federal Equal Employment Opportunity Commission (EEOC) recently announced that in the 1990s, sexual harassment, disability, and retaliation claims have increased substantially, while age- and race-based claims have declined. In the years since 1991, when Anita Hill testified against Clarence Thomas, sexual harassment claims have doubled, and payouts to claimants have increased sevenfold.

During the past six months, there have been three U.S. Supreme Court cases applying Title VII of the federal Civil Rights Act of 1964 to sexual harassment, as well as state law activity in the California Supreme Court. Although the cases have broadened employer liability for sexual harassment by supervisors, they have also created a new defense for employers with proper programs to eliminate sexual harassment. These programs may create a win-win opportunity for employer and employees both because they may reduce harassment in the workplace and provide a defense for properly prepared employers when claims do arise.

Exposure to Liability for Sexual Harassment

Title VII of the Civil Rights Act of 1964 does not speak of sexual harassment, but simply forbids employment discrimination because of sex. However, the courts have held that two forms of sexual harassment violate Title VII. One form, referred to as "quid pro quo," involves demanding sexual favors in return for job benefits, threatening retaliation upon refusal, and carrying out such threats. Another form is behavior that is sufficiently severe or pervasive so as to alter the conditions of employment and create a "hostile work environment," even when the employee is not fired, demoted, or similarly harmed. This behavior must be both objectively and subjectively offensive: behavior which a reasonable person and the victim both find offensive.

The U.S. Supreme Court’s recent decisions have aspects that favor the employers and the employee victims of sexual harassment. They expand the situations in which employers are potentially liable for harassment by supervisors. On the other hand, they allow employers who set up and administer proper programs to avoid liability while making it less likely that harassment will occur in the first place.

Expanded Employer Responsibility

The Supreme Court’s decisions have expanded an employer’s responsibility for sexual harassment by its supervisors. It held that if a supervisor is guilty of using his or her authority for purposes of sexual harassment, an employer is vicariously liable for these acts. If the acts result in a "tangible employment action" against the employee (dismissal, failure to promote, or the like), the employer is strictly liable for it. Even if the employee suffers no harm, such as dismissal or demotion, the employer is potentially liable for the hostile work environment anyway, unless the employer can establish an affirmative defense: that it used reasonable care to prevent and correct the discrimination, and that the employee unreasonably failed to take advantage of the corrective opportunities.

The Supreme Court also noted that "conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VIIs purview. We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace—such as male-on-male horseplay or intersexual flirtation—for discriminatory ‘conditions of employment.’"

Affirmative Defense for Employer

Finally, the Supreme Court enunciated a new affirmative defense that applies to hostile environment cases, but not to quid pro quo cases in which the harassment resulted in "a tangible employment action, such as discharge, demotion, or undesirable reassignment." It said, "The defense comprises two necessary elements: (a) that the employer exercise reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."

To avoid sexual harassment, as well as to avoid liability, employers must have an express policy against sexual harassment of both women and men. It would be wise to include harassment for the other reasons forbidden by Title VII—race, national origin, and religion—as well as because of age, disability, and sexual orientation (which are forbidden in other statutes). This policy should be prominently displayed and distributed—for instance, in an employee manual. Many employers require employees to sign a statement showing that they received and read the policy. Many go further and have formal courses on harassment, complete with films or other demonstations of elements that can constitute harassment.

There should be a procedure for making complaints that does not require the complainant to go through the harassing supervisor. The employer should investigate the complaints in a fair proceeding in which both sides are given a chance to present information favorable to them and rebut evidence provided by the other side. If the complaint is justified, the employer should discipline the offending employee.

Employer’s Responsibility to Accused Employee

The recent U.S. Supreme Court decisions did not deal with the responsibility of the employer to the accused supervisor. The employer may find itself on the horns of a dilemma—being sued by the accusing employee if it fails to discipline the supervisor, and being sued by the supervisor if it does so. California’s Supreme Court recently addressed this subject. It was faced with a large judgment in favor of a supervisor dismissed for sexual harassment. The court held that if the employer shows it reasonably believed that the alleged misconduct occurred and otherwise acted fairly, it can’t be held liable even if it was wrong:

"Three factual determinations are relevant to the question of employer liability: (1) Did the employer act in good faith in making the decision to terminate? (2) did the decision follow an investigation that was appropriate under the circumstances? and (3) did the employer have reasonable grounds for believing the employee had engaged in the misconduct?"

Programs on Prevention Make Sense

A number of federal and state civil rights statutes deal with harassment. It’s not clear to what extent the federal Title VII decisions will be applied to other state and federal statutes, nor whether the view of the California Supreme Court will be adopted elsewhere. However, the employment procedures they set forth make a good deal of common sense. If followed, they will tend to prevent claims in the first place, and provide a fair procedure for dealing with them when they do occur.

Plus Consultant Francis G. Willmarth, Esq. can be reached at Las Doradas Branch Office, P.O. Box 830, Pt. Arena, CA 95468, (707) 882-3878 (phone and fax), E-mail fgw@mcn.org, Web site http://www.willmarth.com.

Moran Insurance
696 Ritchie Highway
Severna Park, MD 21146
410-544-3422 | 800-544-3164 | Fax 410-544-6834

info@moraninsurance.com

Moran Insurance
696 Ritchie Highway l Severna Park, MD 21146
410-544-3422 | 800-544-3164 | Fax 410-544-6834

info@moraninsurance.com