Cybersecurity 101: a 3-Part Series by Businessolver
Cybersecurity isn't just an IT issue. It needs to be baked into the core of an organization's culture. Watch Part 1 - Why HR Needs To Care.
Facebook Doesn't Care About Your Privacy
The records, which revealed the company’s data sharing practices with strategic partners, proved something security experts have long suspected and Facebook has long denied: Violating user privacy is a core component of Facebook’s business model and not just a byproduct of running a massive social media network. Read the article on InfoArmor.com.
A Buzz on the Job Site
Drones, also called unmanned aerial vehicles, are becoming more and more popular, but what seemed at first blush to be a mere toy is gaining traction in the world of trade. As of April, 2018, the FAA estimates that the number of commercial use drones will multiply fourfold by 2022. 1 Usage is becoming broader and more creative: We've seen drones used for reforestation, same-day deliveries and even professional wakeboarding. But, although the highest drone use is in the real estate industry, 2 construction usage leads the pack for rapid industry adoption.
According to the 2018 Commercial Drone Industry Trends report from DroneDeploy, the construction industry has seen 239% growth in industry adoption. 3 In the construction industry, drones can be used to survey sites and map data, help create visuals for builders and clients, monitor the project's progress and keep track of potential safety concerns, inspect completed structures, carry loads, and even provide a level of security.
With rising use, safety and legal concerns remain prominent. Mistakes happen, and they can be costly -- especially on a construction site. Drones, like any specialty equipment, present very real safety concerns. Equipment failure recently lead to a survey drone crash in San Francisco. A newly erected crane, unseen by the drone operator, downed a drone surveying a worksite in Kent earlier this year. Although few injuries to workers have been reported, cuts and impacts are possible.
After an accident, beyond dealing with immediate damage to the drone, property and individuals, the question of liability is paramount. Who is liable if equipment failure leads to damage to a third party's property? Who's liable if a subcontractor - rather than an employee - is the operator? And what if operator error, rather than equipment failure, causes an accident? If industry trends are any indication, companies and employees believe long-term benefits of drone usage will ultimately make up for short-term risks.
The CDC has even gone on record in support of drones as a way of making construction safer: drones can be equipped with radar and infrared sensors for surveillance, used to accurately assess progress, and perform routine inspections, making workers' lives easier and reducing fall risks dramatically. 4 But liability issues and their attendant costs shouldn't be ignored. Many liability policies exclude damage to drones or from drones, but there are other options for mitigating risks.
Between specialty insurance and careful contract wording (and, of course, careful, drone use) drones can be integrated without a burden of unnecessary risk. Clearly defining insurance requirements in contracts and addressing how liability interacts with the use of contractors and subcontractors is key. 5 Drone owners should also ensure that every aspect of drone liability is covered -- potential property damage and bodily injury, potential damage to the drone while in and out of flight, and any liability arising from drone maintenance. Like any tool, drones can be costly, but the proper care and diligence can keep your business flying high.
1
Federal Aviation Administration. "Unmanned Aircraft Systems." FAA Aerospace Forecast Fiscal Years 2018-2038.
2
"Unmanned Aircraft Systems."
3
DroneDeploy. "2018 Commercial Drone Industry Trends." Blog.dronedeploy.com.
4
John Howard, MD; Vladimir Murashov, PhD; and Christine Branche, PHD. "Can Drones Make Construction Safer?" NIOSH Science Blog. Blogs.CDC.gov.
5
Joshua Lorenz. "5 steps to take before using drones at a construction site." Propertycasualty360.com.
Anti-Discrimination Laws and the Superhero Ethos
While the hardworking employees of the Equal Employment Opportunity Commission (EEOC) may not don capes, masks and spandex bodysuits, they're nonetheless the crusaders of employment law enforcement, tackling harassment in its various forms. The EEOC, and all the state and city human rights agencies that advance the same initiatives, are the superheroes of employment law. Now is the time to review the current anti-discrimination landscape and trends for the future to keep your business up to date.
Present Day
The EEOC has been hard at work fighting against harassment, and has its work cut out for it. According to the EEOC, it filed 66 legal actions for harassment in 2018, 41 of which included sexual harassment allegations. This represents a doubling of lawsuits alleging sexual harassment since 2017. In fact, the deputy director of the EEOC, New York District, advised that approximately 43 percent of the EEOC workload is based on complaints of sexual harassment. Further, more than half of claims filed with the EEOC include a complaint of retaliation. The EEOC also experienced a 12 percent increase in charges of discrimination filed with them alleging sexual harassment. Note that all statistics and financial information regarding the EEOC can be found at www.eeoc.gov.
Note that charges of discrimination filed with the EEOC, state agencies or city agencies most often meet the definition of a claim in an employment practices liability insurance policy. As such, you should report any charges of discrimination to your insurer.
In the atmosphere of increasing enforcement resulting from the #MeToo movement, not only has employment practices liability insurance seen an increase in claim activity, but directors and officers liability insurance (D&O;) has been impacted as well. In City of Monroe Employees Retirement System v. Murdoch, et al . 1 a $90 million settlement was approved by the court and paid by D&O; insurers in a derivative lawsuit against board directors and executives of Twenty-First Century Fox, Inc. The lawsuit arose out of allegations of failure to monitor and appropriately respond to sexual harassment and racial discrimination at the company.
Several high-profile legal actions filed that followed Twenty-First Century Fox involved Signet Jewelers, Wynn Resorts, Papa John's and CBS. These shareholder class actions typically alleged failure to disclose adverse facts regarding sexual harassment or sexual misconduct allegations paired with assertions that the board of directors either turned a blind eye or acquiesced to the misconduct, which is tantamount to a breach of fiduciary duty.
Most often, the activities of C-suite officers have served as the basis for the underlying employment action that gives rise to the shareholder class action.
In your own practice, consider what impact, if any, an employment claim might have on directors and officers of your organization -- in the final analysis, you may decide to submit notice of any employment claims to your D&O; insurer as well as your employment practices insurer if there is a reasonable likelihood that it will materialize into a D&O; claim.
Although it may take years for newly submitted employment lawsuits and shareholder class actions to resolve, at dollar amounts that we can only speculate, the one-two punch of the EEOC has enabled it to recover an estimated $70 million for the victims of sexual harassment through litigation and administrative enforcement during fiscal year 2018. This financial recovery is a huge increase from the $47.5 million recovered in 2017. These financial results may be attributable to the EEOC's epic drive to drive harassment out of the workplace in combination with Congress' allocation of financial resources to the agency in an effort to get ahead of and now keep pace with harassment.
Sidekicks: State and City Agencies
As every great super hero has a sidekick, so too does the EEOC. State and city agencies are formidable partners, advancing federal government initiatives by passing their own regulations to combat harassment and discrimination in the workplace. Many state and city agencies have promulgated model language for sexual harassment policies, complaint forms and standards for sexual harassment prevention training.
Certain states have gone so far as to implement mandatory sexual harassment training; notably, states dissuade employers from ignoring minimum state standards for training by punishing noncompliance with fines and other penalties.
Consult with your employment counsel to ascertain whether any newly enacted state or city legislation might impact your business operations and to check your employment practices liability insurance policy for guidance regarding the coverage of fines and penalties for failure to implement recently passed laws and regulations in this realm.
The EEOC's "Respectful Workplaces" training program, which commenced in October 2017, has served as a prototype for anti-harassment training. It's anticipated that 2019 will be a year of outreach, education and training across the country in the fight to eradicate the EEOC's nemeses: the villains of sexual harassment and discrimination. 2
The Next Chapter
Looking ahead, the EEOC has expressed that more attention will be paid to non-disclosure agreements and mandatory arbitration clauses. Inasmuch as the EEOC characterizes itself as a law enforcement agency, its activities are not stopped due to mandatory arbitration clauses. The EEOC emphasizes that the settlement of a case by a private individual does not preclude the agency from filing its own charge of discrimination against an entity or persons, particularly where conduct is severe and pervasive.
The long-term aim, as expressed by the EEOC, is to perhaps modify the "severe and pervasive" burden of proof required for a claimant to sufficiently demonstrate that discrimination and/or harassment has occurred, because organizations and corporations may erroneously focus on that standard in determining whether wrongful conduct exists -- as opposed to using the standard of an "individual is treated less well than a co-worker" (as seen in the NYC Human Rights Law). Ultimately, there must be a middle ground.
It seems unlikely that the issues of discrimination and harassment will disappear any time soon. Even as we pivot towards a more culture-focused anti-discrimination environment, working to move beyond the letter of the law, new challenges are sure to appear. As one superhero so aptly put it, "no matter how many times you save the world, it always manages to get back in jeopardy again." 3 Fortunately, the EEOC and related agencies will continue to fight for truth, justice and the American way.
1 City of Monroe Employees Retirement System v. Murdoch, et al. Delaware Chancery Court, No. 2017-0833. www.blbglaw.com/ .2 See generally , www.eeoc.gov .
3 Bob Parr/Mr. Incredible, The Incredibles . Pixar Animation Studios for Walt Disney Pictures.
This material was created by PPI Benefit Solutions to provide accurate and reliable information on the subjects covered but should not be regarded as a complete analysis of these subjects. It is not intended to provide specific legal, tax or other professional advice. The service of an appropriate professional should be sought regarding your individual situation. PPI does not offer tax or legal advice. "PPI®" is a service mark of Professional Pensions, Inc., a subsidiary of NFP Corp. (NFP). All rights reserved.