The Hotel vs. The Tomboy

The Issue

In 2005, Brenna Lewis was hired at Heartland Inns of America and in 2007 was promoted to a night shift, front desk job. The Director of Operations, Barbara Cullinan, hired Lewis after a phone interview, sight unseen. However, after seeing Lewis for the first time, Cullinan requested a second interview telling the manager that Lewis was “not a good fit” and lacked the “Midwestern girl look”. Lewis, who described herself as “slightly more masculine” preferred to wear loose-fitting clothing including mens button-down shirts and pants, stayed away from makeup and wore her hair short. Lewis challenged the second interview and was fired three days later for thwarting the interview process and hostility towards new procedures. Within this time frame, a new policy was enacted requiring all front desk interviewees to go through two interviews.

The Result

Lewis sued Heartland Inn for sexual stereotype discrimination and retaliation. Three years and an appeal later, a jury awarded Lewis more than $50,000 for her retaliation claim. She did not win on the sexual stereotype discrimination claim.

Good Reason for EPLI

Even though some consider it “discretionary” insurance, EPLI is an essential coverage.

  • Typical lawsuits last at least two years (this lawsuit lasted three years)
  • Defense costs average $120,000 to go to trial (defense costs were probably higher in this case since it went through the appeals process)
  • Jury awards average $252,000

What do you get with the purchase of an EPLI policy through PLIS, Inc.?

  • Predictable monthly or annual premium (could be less than $5 per day)
  • Assisance from experienced EPL attorneys
  • FREE, UNLIMITED telephone access to risk management and HR services through SRM
  • Punitive & Exemplary Damages (where insurable) Liquidated Damages Coverage
  • $2500 in First Dollar Defense for Administrative Proceedings Coverage
  • 50% Deductible Reduction Broad Definition of Inappropriate Employment Conduct

Human Resources / Risk Management Intervention Needed

If Heartland Inn had consulted a reliable risk management company (i.e. Specialty Risk Management®, Inc.), the outcome may have been different. Poor company practices, inappropriate statements (i.e. “front desk personnel should be pretty”) and the lack of proper policies and procedures all played a hand in this ruling.

However, with proper direction and documentation in place, this claim could have been avoided, settled for minimal dollars or the jury award reduced.

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Restaurants and the New Food Safety Bill

The FDA Food Safety Modernization Act (HR 2751) was recently signed into law by President Obama.  The law was mainly written to protect consumers from poor practices of food manufacturers and producers to reduce the number of food borne illnesses and control the practices of these facilities.  However, agents need to be aware of the ramifications to their restaurant clients:

  • Restaurants are considered a “qualified end-user”, not a producer or manufacturer and are therefore excluded from many of the requirements of this bill.  However, if a restaurant produces or manufacturers its own product (i.e. pizza dough or sauce, BBQ sauce, etc.) then that portion of the business may fall under the new requirements.
  • The bill will largely have an impact on produce products and ready-to-eat foods but allows current regulations (i.e. fish regulations, juice HACCP and pasteurized milk ordinance, etc.) to remain in force. 
  • It reaches into the retail environment by establishing rules by which grocery stores will be required to notify customers regarding contaminated and recalled food.
  • There’s language predicting future rules “within a year” that may affect restaurants with regard to traceability requirements and terrorism.
  • Restaurants could see an increase in food supply interruptions not previously seen due to the procedures associated with new inspection requirements at their suppliers.
  • The new rules could strengthen the restaurant goals in establishing stronger vendor certification programs simply because the requirements will exist as a function of the new law.
  • The presence of a pathogen may not be the only reason for foods to be announced as recalls.  We could see recalls based on broader definitions of adulteration due to:
    • Lack of written plans
    • Inadequate surface testing programs
    • Inadequate GMPs, SSOPs and SOPs. 
  • Every food production facility has to register every two years but food registration now means licenses can be revoked or non-renewed and no food can be shipped legally to the restaurant.
  • For those using imported foods the rules are stronger on import documentation.

Restaurants need to think carefully about their Trade Name being displayed as part of the packaging on the product being shipped to their restaurant.
 
Don’t forget – our Trade Name Restoration program offers coverage for both supplier and restaurant-caused events (in addition to many other great features).  Contact us for a full range of coverage features.

For more specific details on how this legislation may impact your current or future restaurant clients, Specialty Risk Management, Inc. is available to answer questions for all insureds of the Trade Name Restoration program.

All coverage features are subject to individual underwriting and certain coverage features may be restricted. Not intended to be a representation of coverage or a guarantee of a quote or indication. See policy wording for coverage details.Copyright © 2011 PLIS®, Inc. and its licensors. All rights reserved.

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UPDATE: FDA Food Safety Modernization Act

Update:

With the short amount of time left in the “lame duck” session, it appeared that this bill may have died in the Senate (due to a procedural mistake made by the Senate earlier in December in their first version of this bill).  However, in a surprise vote on Sunday, December 19th, the Senate fixed its error and unanimously passed S. 510 (which is now called HR 2751 The FDA Food Safety Modernization Act).  It has since passed the House and is now waiting for President Obama’s signature. 
 
New Exemptions:

An amendment was added to the bill (the Tester-Hagan amendment) that exempts small farms and producers from some of the requirements:

  • Small Farms:  If a farm grosses less than $500,000 and sells more than half their products directly to consumers or restaurants within 275 miles, the farm will NOT have to comply with the produce safety standards of registering the farm.  However, the farm must still either put a label or display a sign with the farm name and address.  If the FDA directly links the farm to an outbreak, the exemption can be withdrawn for that farm.
  • Businesses that process foods and sell more than half their products directly to individual consumers (not businesses) will not have to register with the FDA nor comply with the HACCP-requirements. 
  • Businesses that process foods and sell less than half their products directly to individual consumers may also be able to exempt themselves from the requirements of the bill if they qualify by producing paperwork showing:
    •  
      • that they qualify (i.e. gross under $500,000 and sell more than half their products to consumers, local restaurants and local retailers combined) and
        that they comply with any applicable local and state laws.  But, they still have to register because of the existing requirements under the Bioterrorism Act, even though they do not have to go through the extensive HACCP-type requirements that will be added on under S510/HR 2751
      • Even small businesses are not exempt from the government if food is believed to be adulterated.

Reminder – Basic Info on HR 2751:

  • Allow the FDA to order a recall of tainted foods. Currently the agency can only negotiate with businesses to order voluntary recalls.
  • Require food processors and manufacturers to register every two years with the FDA and create detailed food safety (HACCP) plans, GMPs, SOPs and SSOPs and surface testing.  Registrations can be revoked.
  • Expands definition of adulteration to a “reasonable probability” that processes are insufficient based on records
  • Require the FDA to produce new safety regulations for producers of the highest-risk fruits and vegetables
  • Establish stricter standards for imported foods
  • Increase inspections of domestic and foreign food facilities which means higher probabilities of finding “adulteration” based on observations of processes and records
  • Increased requirements for laboratories to share test results with federal government

As an added benefit of the RCR program, insureds can contact Specialty Risk Management, Inc. for FREE for details on this new legislation and its requirements to manufacturers.

 

 

All coverage features are subject to individual underwriting and certain coverage features may be restricted.
Not intended to be a representation of coverage or a guarantee of a quote or indication. See policy wording for coverage details.
 Copyright © 2011 PLIS®, Inc. and its licensors. All rights reserved.

 

 

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The National Labor Relations Board v. Social Media

The National Labor Relations Board (NLRB) is taking on social media and employers.
 
On November 2nd, the NLRB issued a press release announcing a complaint filed by the NLRB’s Hartford regional office against a Connecticut employer.  Allegedly, the employer illegally terminated an employee who posted negative comments about her supervisor from her home computer on her personal Facebook page.  In addition, the complaint alleges that the company illegally denied union representation to the employee during an investigatory interview and enforced an overly broad blogging and internet posting policy.

What does this mean?
The NLRB is alleging that the employee had a right to engage in “concerted, protected activity,” (by communicating with coworkers about the terms and conditions of her employment).  By firing her, the NLRB is arguing that the employer violated her rights as an employee (even non-union employees have that right under Section 7 of the National Labor Relations Act).

How should your clients prepare? 
First, be aware that most EPLI policies do not cover NLRB violations or charges.  However, if employers purchase our ESI-EPLI policy and additional charges are filed under an administrative agency (i.e. the Equal Employment Opportunity Commission), defense may be covered.

Second, with the purchase of our ESI-EPLI policy, your clients can contact Specialty Risk Management, Inc. for details on how to implement a new social media / blogging policy or revise their current policy.  Every call is free and their phone time is unlimited. 

All coverage features are subject to individual underwriting and certain coverage features may be restricted.
 
Not intended to be a representation of coverage or a guarantee of a quote or indication. See policy wording for coverage details.
 
Copyright © 2010 PLIS®, Inc. and its licensors. All rights reserved.
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Senate Passes Food Safety Bill

On November 30th, the Senate passed S. 510, the Food Safety Modernization Act by a vote of 73-25. This $1.4 billion bill, which was drafted in response to peanut, egg and produce recalls, will:

  • Allow the FDA to order a recall of tainted foods.  Currently the agency can only negotiate with businesses to order voluntary recalls
  • Require larger food processors and manufacturers to register with the FDA and create detailed food safety plans
  • Require the FDA to new produce safety regulations for producers of the highest-risk fruits and vegetables
  • Establish stricter standards of imported foods
  • Increase inspections of domestic and foreign food facilities, directing the most resources to those operations with highest risk profiles

What’s next?

The House passed its own version of this bill in 2009.  Now the Senate and House versions must be reconciled before it can be sent to the President for signature. 

Stay tuned for more details as this legislation goes back to the House for approval.

Specialty Risk Management®, Inc. (SRM®), the designated crisis management team for the Recall Crisis Recovery® Program, is provided as a part of the program to assist with:

  • Compliance & understanding of new food safety regulations, including:
    • Assisting with detailed food safety plans
    • Providing regular updates and notification of new food safety regulations and how they affect clients
Copyright ©  2010 PLIS®, Inc. and its licensors.  All rights reserved.
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Food Borne Illness Outbreaks and the ISO Gap …

Around 2004, the Mold, Fungi and Bacteria Exclusion was added to ISO forms as a reaction to unexpected mold claims.  This exclusion was added without taking into consideration the effect it would have on restaurants and their unique exposure of food borne illness outbreaks.

Therefore, don’t assume that food borne illness outbreaks are covered under typical General Liability policies.  There may be exclusions that preclude coverage for these types of events. 
 
General Liability policies fall short on business interruption coverage for food borne illness outbreaks because there is a lack of physical damage.  There is now an additional gap for food borne hepatitis A inoculation, vaccination and testing expenses. 

While you may be able to negotiate the mold, fungi and bacteria exclusion on behalf of your clients, it still may not be enough.  General Liability policies will not trigger for food borne hepatitis A expenses when there is only one sick employee given there is a lack of bodily injury to the customers.

Can a restaurant turn to the health department to cover these costs?  Before the economy started faltering, local and state health departments would typically pick up the costs of inoculations and open their own clinics to the general public.  However, lack of government funding has left these health departments short on resources and they are now billing the restaurant for all expenses including, but not limited to: inoculations, vaccinations, clinics and wages for clinical staff. 

Where can a restaurant turn to for coverage?  The Trade Name Restoration® (TNR®) policy has coverage available for Hepatitis A inoculations, vaccinations and testing OUTSIDE THE LIMITS that is NOT subject to a deductible.

Also, TNR fills gaps in General Liability by responding to:

  • Food Borne Illness
  • Accidental Contamination
  • Malicious Contamination
  • Impact from publicity of an actual or alleged outbreak involving the same Trade Name
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