September 2016 - Issue 55

Risk Management Educational Forum: 2016 Capstone Award Finalists Selected

Course Development Model

Onsite Check-in

August Risk Managers Roundtable: Property Program

Liability Attorney Summit Recap

Workers’ Compensation Symposium Recap

New FAA Drone Regulations

Bill Banning Salary History Questions Goes Before House

Court of Appeal Rejects Claimed Exception to ‘Going-and-Coming’ Rule

EEOC Issues Final Enforcement Guidance on Retaliation and Related Issues after Public Input Process

News: Worthy

Risk Management Educational Forum: 2016 Capstone Award Finalists Selected

The 2016 Capstone Award finalists have been selected and will be honored at the Authority’s 21st Annual Risk Management Educational Forum.  The Capstone Award is presented each year to an individual that best exemplifies the practice of risk management in the public sector.

Nominations for the Capstone Award were received from across the Authority membership, and the finalists for the award were determined based on the following key criteria:

  • Works to support traditional or enterprise risk management efforts for the member agency
  • Develops, implements, and administers loss prevention and loss control programs to mitigate risk exposures for the member agency
  • Coordinates support systems that serve the member’s risk management goals and needs
  • Influences others in developing quality risk management programs for the member agency

 The Authority is pleased to announce the five finalists for the Capstone Award:

  • Susan Crumly, Human Resources and Risk Manager for the City of Bellflower
  • Roberta Greathouse, Human Resources Director for the City of Seaside
  • Karen Johnson, Personnel Analyst for the City of Temple City
  • Tony Moreno, Administrative Analyst II for the City of La Mirada
  • Arabo Parseghian, Senior Management Analyst for the City of La Cañada Flintridge

One finalist will be announced as the Capstone Award recipient at the Welcome, Capstone Award, and Keynote at 8:00 a.m. on Thursday morning at the Forum.


News: Worthy

Course Development Model

By Joe Eynon, Training Manager

The California JPIA has revised the course development process with the primary objective to create a process that results in innovative, industry leading, exceptional training. The California JPIA Course Development Model was developed to redesign current and future courses in order to achieve the following goals:

  • Quality – design curriculum with excellence as the core value.
  • Standardization – develop curriculum that is standardized and delivered with the same learning objectives across sessions and instructors.
  • Measurability – create courses with learning objectives that can be measured to demonstrate learning has occurred.
  • Alignment – ensure alignment with regulatory guidelines, state and federal statutes, and industry best practices.
  • Interactivity – create training courses that are interactive and highly engaging built on adult learning principles to enhance learning.

The California JPIA Course Development Model is a team effort involving multiple individuals and entities that actively participate in course development that include members, curriculum development teams, subject matter experts, instructors, and Authority staff.

The California JPIA Course Development Model includes the following six phases:

  • Proposal – the proposed courses are evaluated to determine how the Authority can best deliver the proposed content and how the proposed training criteria can be best accomplished.
  • Planning – the necessary resources are put in place to initiate and support the course development and a curriculum development team is established.
  • Development – the curriculum development team develops the course plan, including the learning objectives and all course reference documents.
  • Approval – the Authority reviews and approves the course plan and all reference documents.
  • Materials – the instructors develop teaching materials based on the approved course plan and reference documents.
  • Delivery – the instructors deliver the approved course content and materials, and the Authority receives instructor and participant feedback, which is used as the basis for continuous quality improvement (CQI).

The Authority is pleased to announce the upcoming 2017 release of the following courses that have undergone the California JPIA Course Development Model process:

  • Accident Investigation 
  • Defensive Driving
  • Introduction to Cal/OSHA and Conducting Safety Inspections 
  • ADA Administrative Roles and Responsibilities 
  • ADA Coordinator 
  • Developing Your ADA Plan 
  • ADA Facilities Codes and Activities 
  • ADA Public Right of Way (PROW) Codes and Activities 
  • Bloodborne Pathogens and Aerosol Transmissible Diseases 
  • Hearing Conservation and Heat Stress 
  • Environmental Safety 
  • HAZWOPER First Responder Awareness (FRA) 
  • HAZWOPER First Responder Operations (FRO) 


News: Worthy

Onsite Check-in

By Ryan Thomas, Training and Loss Control Specialist

The Authority is pleased to announce a streamlined electronic training check-in process that will improve the training administration experience for members.  Earlier this month, all member agency employees were provided with laminated ID cards that contained QR codes and unique seven-digit ID numbers.  Employees attending trainings will be able to scan these ID cards, or enter their ID number into the scanner kiosk which will be set up for each training session.  Additionally, e-mailed confirmation of course registration will also contain a Training Pass that can be printed and brought to trainings for check-in.

This process will eliminate the need for paper sign-in sheets and will lead to less paper processing and follow-up by member agency training registrars.  Employees that check-in in this manner will automatically receive training completion certificates by e-mail within one hour of the completion of training.

In summary, onsite check-in will enable member agency employees that attend training to:

  • Print their Training Pass at their convenience
  • Scan their Training Pass from the new onsite kiosk
  • Access training certificates upon completion of training
  • Print training ID cards

Please contact Ryan Thomas, Training and Loss Control Specialist, for more information about the onsite check-in process.


News: Worthy

August Risk Managers Roundtable: Property Program

By Alex Mellor, Risk Manager

Representatives from a multitude of member agencies attended the Authority’s latest Risk Managers Roundtable event to discuss important changes to the Property Program beginning with the 2016-17 coverage period.  Separate roundtables were held in La Palma, Arroyo Grande, and Indio, in order to make the event accessible to member agencies in all geographic regions.

The Authority’s Insurance Programs Manager, Jim Thyden, facilitated a discussion that included changes to how the new carrier (XL Catlin) underwrites the Property Program, coverage modifications, and adjustments to the cost allocation formula.  Thyden was joined by representatives from the Authority’s broker for the Property Program, Alliant Insurance Services.

Member employees who attended the roundtable found the discussion valuable. Comments received included:

  • “The roundtable was very helpful to me as a new Risk Manager.”
  • “I appreciated the high points [of changes to the property program] being covered as well as more in depth information. Group discussion was very helpful.”
  • “Really helpful and informative. Could have been longer. Lots of good questions and comments.”

Subsequent to the roundtable, members were emailed a copy of their Property Program invoice for the 2016-17 coverage period.  The email was sent to each agency’s Chief Executive, Finance Director, and Risk Manager, and included a summary of the information provided at the roundtable event.

For more information regarding the Authority’s Property Program, please visit the Authority’s website: http://www.cjpia.org/protection/coverage-programs/property-insurance-program, or contact Jim Thyden.

The Risk Managers Roundtable series provides a unique opportunity for member employees to interact and exchange ideas with their peers on matters of risk.  The next event in the Authority’s roundtable series is scheduled for November, with the topic “Managing Technological Risks.” 


News: Worthy

Liability Attorney Summit Recap

By Paul Zeglovitch, Liability Program Manager

The California JPIA held its Annual Liability Attorney Summit on August 24, 2016, at the Authority campus in La Palma.  Approximately 70 participants attended the Summit, including representatives from Carl Warren & Company, the Authority’s liability defense panel firms and business partners, and Authority staff.                        

Paul Zeglovitch, Liability Program Manager, welcomed attendees and presented a report on the state of the Liability Program.  Zeglovitch stated that combined indemnity and expense payments made in 2015 had risen to $28M, up from the prior three-year average of approximately $23M.  During 2015, one case that was unsuccessful at trial resulted in an expenditure of approximately $6M, hence the increased figure.  The Program did have three successful cases at trial during 2015/2016, all resulting in defense verdicts.  Expense payments during that same time period were also up approximately $1M, a testament to how dedicated the Authority is to defending cases.

The speakers shared success stories from other clients with the audience, recounting their experiences and insights into the law, local jurisdictions, and juror and judge behavior.   

Three key sessions were presented at the Summit.  Attorney Dan Barer of the law firm of Pollack, Vida & Fisher provided an appellate case update, covering cases related to inadvertent disclosure of privileged records through a Public Records Request, private view impairment, late claim procedures, trail immunity, and hazardous recreational activities. 

The keynote session featured Screenwriter and Narrative Strategist, Ruben Padilla. Padilla spoke about how best to express yourself and tell your story in the most compelling and genuine way possible, providing examples from the world of film and business.

Colin Tudor, Assistant City Manager of Claremont, provided a very interesting session on “The Data Dilemma.”  This session discussed how to take large amounts of data and condense it into something that is relevant, easy to understand, and impactful.  Certainly a skill that can be used in a multitude of disciplines, including the practice of law.   

The Summit once again proved to be a great opportunity for the Authority’s defense counsel to gather, learn, share knowledge, and improve their respective abilities to successfully defend the members.


News: Worthy

Workers’ Compensation Symposium Recap

By Jeff Rush, Workers’ Compensation Program Manager

The California JPIA hosted the 8th Annual Workers’ Compensation Symposium at the Authority campus on August 18, 2016.  Attendees heard from eight presenters who spoke on topics relevant to members, adjusters, and attorneys handling workers’ compensation claims.

The program began with Dr. David Hall, a clinical psychologist, who provided insights into the challenges of dealing with psychiatric injuries.  Hall discussed approaches to mitigate the impact of psychiatric injury claims.

Noah Schwartz from Ringler Associates then discussed the benefits of seeking to resolve claims with the use of a structured settlement.  The Authority often involves Schwartz and his team when attempting to resolve claims with a significant cost. 

Dr. Bruce Fishman, an orthopedic surgeon, provided a detailed presentation addressing the complex topic of apportionment.  Fishman outlined numerous ways to reduce an injured workers’ level of impairment when other factors have contributed to their overall disability. 

Kelly Trainer and Katy Suttorp, both partners with Burke, Williams & Sorenson, spoke about fit for duty evaluations.  Employers occasionally want to request a fit for duty evaluation when an employee is recovering from a workers’ compensation claim and they outlined some of the scenarios when such evaluations are appropriate and some of the instances when they should be avoided.

The Symposium concluded with a case law update featuring three of the California JPIA’s panel attorneys: Catherine McWhorter from Hayford & Felchlin; Daryn Diaz from the Law Offices of Robert Robin; and Demetra Johal from Laughlin, Falbo, Levy & Moresi.  The panel addressed cases on a variety of topics including medical provider networks and good faith personnel actions.

For those unable to attend the Symposium, a recording of the program has been added to the Members’ area of the Authority’s website.  If you have any topics you would like to see addressed at next year’s Symposium, please share your ideas with Jeff Rush, Workers' Compensation Program Manager.


Risk Solutions

New FAA Drone Regulations

By Alex Mellor, Risk Manager

Over the past few years, the media has provided heavy coverage of the potential of unmanned aerial systems (UAS or “drones”) to revolutionize certain operations in both the private and public sectors.  We have been told that it is only a matter of time until drones are delivering packages from online retailers, monitoring remote infrastructure, or providing support for search and rescue missions.

However, as is often the case with new technology, the desire of organizations to realize business efficiencies by integrating drones into their operations has outpaced the development and promulgation of rules and regulations by government agencies.

On June 21, 2016, the Federal Aviation Administration (FAA) took an important step toward bridging this gap by releasing Part 107 of the Federal Aviation Regulations, a set of operational restrictions covering a broad spectrum of commercial uses for drones weighing less than 55 lbs. These new regulations went into effect on August 29.  Here are some of the highlights:

  • The UAS must remain within visual line of sight of the pilot or visual observer
  • UAS may only be operated during daylight hours, or during twilight with appropriate anti-collision lighting
  • The pilot must perform a preflight inspection of the UAS to ensure that it is in a condition for safe operation
  • A person operating a UAS must either hold a remote pilot airman certificate with a small UAS rating, or be under the supervision of someone who does
  • The maximum altitude at which UAS may operate is 400 feet above ground level, or within 400 feet of a structure

A complete summary of the new regulations can be found on the FAA website here: http://www.faa.gov/uas/media/Part_107_Summary.pdf. The regulations do also allow for a waiver of the various operational restrictions if it can be demonstrated that the proposed operation can be conducted safely. The FAA intends to make available an online portal to apply for such waivers.

The California JPIA recommends that, prior to operating a drone, member agencies ensure they are in compliance with all FAA regulations related to UAS. Similarly, it is also recommended that service providers or permittees who will operate drones (e.g. videographers) confirm to the member’s satisfaction that they are in compliance with the same regulations. As always, members should seek to transfer the risk associated with drone operations by service providers or permittees by executing a written agreement (or permit) with appropriate indemnification language and insurance requirements.

For further information on UAS, please visit the FAA website here: https://www.faa.gov/uas/.


Legislative Update

Bill Banning Salary History Questions Goes Before House

(Reprinted from the Society for Human Resource Management)

Legislation that would prohibit employers from asking a job applicant to provide a salary history was introduced in Congress on September 14, 2016.  The bill's aim is to even the playing field among men and women and minorities doing substantially the same work. Congress referred the bill to its House Committee on Education and the Workforce.

Under the Pay Equity for All Act of 2016 (H.R. 6030), the U.S. Department of Labor would be able to assess fines up to $10,000 against employers who violate the law by asking questions about an applicant's salary history.  Additionally, prospective or current employees would be able to bring a private lawsuit against an employer who violated the law and could receive up to $10,000 in damages plus attorney fees.

The bill is co-sponsored by Reps. Rosa DeLauro, D-Conn., Jerrold Nadler, D-N.Y., and Jackie Speier, D-Calif.

The pay gap between men and women starts as early as college graduation, even when the field of study is the same, according to an American Association of University Women study. The pay disparity is compounded when an employer bases a job candidate's wages on that person's previous salary history, according to Norton's office.

Additionally, women are less likely than men to negotiate their salaries, and they fare worse when they do negotiate, studies have shown. A report on gender pay inequity that the Joint Economic Council released in April 2016 found that, at the current rate of change, the gender pay gap will not close until 2059.

Although many employers may not intend to discriminate on the basis of gender, race or ethnicity, asking for prior salary information before offering an applicant a job can have a discriminatory effect in the workplace that begins or reinforces the wage gap, according to a news release announcing the bill.

A representative from the Society for Human Resource Management (SHRM) said the global HR organization is looking forward to reviewing the proposed legislation.

"SHRM has a long history of supporting equal pay for equal work and believes any discrimination should be addressed promptly and rectified," said Kelly Hastings, senior advisor, government relations, at SHRM.

"While SHRM believes that employers should have the ability to ask and verify previous salary history, we do not believe that previous pay should be the sole method for setting a candidate's pay," Hastings said. "Many factors must be taken into account when setting pay for a position, such as education requirements, job tasks, the market and experience."

Massachusetts' new pay equity law prevents employers from asking job candidates about their salary history in interviews, making it the first state to enact such a law.

An amendment to New York City's Human Rights Law, introduced in August, would prohibit city employers from asking for or relying on a job candidate's salary history when making pay decisions.

And while a bill awaiting California Gov. Jerry Brown's signature—or veto—would not prohibit hiring managers from asking job candidates about their current salary, it would ban employers from using that information to justify a pay differential between men and women performing substantially similar work.


The Court Report

Court of Appeal Rejects Claimed Exception to ‘Going-and-Coming’ Rule

(Reprinted from the Metropolitan News Enterprise, September 19, 2016)

A defendant whose employee struck a young pedestrian while driving home from work, in his personal vehicle, was wrongly held responsible for the resulting injuries, the First District Court of Appeal ruled Friday.

Tossing out an $885,000 jury verdict, the court held that the case should never have gone to the jury because there was no substantial evidence to support the plaintiff’s theory that the Culinary Institute of America required Almir Da Fonseca to use his own car while working away from campus.

Justice James Richman authored the opinion for Div. Two.

Leopoldo Jorge Jr., then 14, was one of two people hit by Da Fonseca in the 2010 incident. It occurred while Da Fonseca, a chef instructor at the institute’s Greystone campus in St. Helena, was driving to his home in Sebastopol at the end of the workday.

Jorge sued Da Fonseca and the institute, which he claimed was responsible on the basis of respondeat superior. The institute moved for summary judgment, citing the “going-and-coming” rule, under which an employee driving to or from work is generally regarding as doing so outside the scope of employment, absolving the employer of liability for the employee’s negligent driving.

Motion Denied

Sonoma Superior Court Judge Elliot Daum denied the motion, saying there was evidence—“[h]owever thin”—from which a jury might find that Da Fonseca was within the scope of his employment.

The case was bifurcated, so that liability was tried before damages. The plaintiff presented evidence that his duties included consulting on behalf of the institute and presenting at conferences and other events, some off-campus.

The defense countered with testimony from school officials, who acknowledged that DaFonseca did a good deal of work away from the campus, but said they did not require him to use his personal vehicle to do so.

Adam Busby, DaFonseca’s immediate supervisor, testified:

“It was up to the instructor how they got from point A to point B,” he said. “It wasn’t up to me to decide.  It was up to them.”

If an employee rented a vehicle to travel to a conference, he said, he would be reimbursed. It was undisputed that Da Fonseca had received a number of mileage reimbursements for work-related travel in his personal vehicle.

Exception Claimed

Daum instructed the jury on the going-and-coming rule and the “required vehicle” exception first recognized in Smith v. Workmen’s Comp. App. Bd. (1968) 69 Cal.2d 814 (Smith), a case involving a claim for worker’s compensation benefits when a county social worker was fatally injured in a single-car accident while driving to work.  The high court said the going-and-coming rule should not be applied because the employer required the employee to bring his car to work so that he could visit clients in the field.

Jurors in Jorge’s case found that the employee driver—who had settled out of the case for $30,000—was negligent and that he was acting within the scope of employment. The plaintiff was found not to be negligent.

Richman, writing for the appellate panel, said none of the published appellate opinions applying the required vehicle exception supported the plaintiff’s position.

The drivers in those cases, he explained, were all required to transport themselves to other locations for work and had no other means of transportation available.

“There was no evidence here that Da Fonseca was required to use any car, let alone his own car, to accomplish his work duties during his work day,” the jurist wrote. “Where there is no evidence that the employee was required to have his or her car available during the work day, there is no question for the jury as to the applicability of the required vehicle exception.”

Nor does the fact that Da Fonseca used his personal car to carry his knives and chef’s jackets between the school and home, or to off-campus work commitments, make his commute home work-related, Richman said. “Carrying employer-owned tools of the trade to work does not render an employee’s commute within the course and scope of employment” under the case law, the justice said.

The case is Jorge v. Culinary Institute of America, 16 S.O.S. 4700.


Legal Matters

EEOC Issues Final Enforcement Guidance on Retaliation and Related Issues after Public Input Process

(Press Release, U.S. Equal Employment Opportunity Commission)

On August 29, 2016 the U.S. Equal Employment Opportunity Commission (EEOC) issued its final Enforcement Guidance on Retaliation and Related Issues, to replace its 1998 Compliance Manual section on retaliation. The guidance also addresses the separate "interference" provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.

The Commission has also issued two short user-friendly resource documents to accompany the new guidance: a question-and-answer publication that summarizes the guidance document, and a short Small Business Fact Sheet that condenses the major points in the guidance in non-legal language.

"Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination," said EEOC Chair Jenny R. Yang. "The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.  The public input provided during the development of this guidance was valuable to the Commission in producing a document to help employers prevent retaliation and to help employees understand their rights."

On Jan. 21, 2016, EEOC published a proposed guidance for public input on www.regulations.gov. The final guidance issued today reflects the Commission's consideration of feedback received on the proposal from approximately 60 organizations and individuals representing a wide range of viewpoints. In preparing the final guidance, the agency also considered the stakeholder views expressed at the June 17, 2015 Commission Meeting held on this topic.  

The guidance addresses retaliation under each of the statutes enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA).  Topics explained in the new guidance include:

  • The scope of employee activity protected by the law.
  • Legal analysis to be used to determine if evidence supports a claim of retaliation.
  • Remedies available for retaliation.
  • Rules against interference with the exercise of rights under the ADA.
  • Detailed examples of employer actions that may constitute retaliation.

Since EEOC's 1998 Compliance Manual section on retaliation, the U.S. Supreme Court has issued seven decisions addressing retaliation under EEOC-enforced laws, and the filing of EEO claims that include a retali­ation allegation has continued to grow. Charges of retaliation surpassed race discrimination in 2009 as the most frequently alleged basis of discrimination, accounting for 44.5 percent of all charges received by EEOC in FY 2015. In the federal sector, retaliation has been the most frequently alleged basis since 2008, and retaliation findings comprised between 42 percent and 53 percent of all findings of EEO violations from 2009 to 2015.

EEOC is responsible for enforcing federal laws against employment discrimination.  Further information about the agency is available at www.eeoc.gov.