Issue 120 – February 2022
Don a fedora, crack a whip, and pack your satchel for an educational experience beyond your wildest aspirations at the California JPIA’s 27th Annual Risk Management Educational Forum, October 5–7, 2022, at the Hilton Santa Barbara Beachfront Resort.
The theme of this year’s Forum is “Adventures in Risk Management.” Adventures are exciting: typically bold, sometimes risky. There may even be potential for danger while traveling or exploring new territories.
While such activities may inspire a surge of adrenaline and fear, members of the California JPIA need not worry; the Authority’s expert guides are well-equipped to help your agency maneuver through dangerous territory and escort you safely to any remote outpost. With the support of the California JPIA, members can take on any challenge.
Tap into your sense of wonder as you journey through the Forum: a premier educational event teeming with exotic and thrilling experiences, including a globe-trotting keynote speaker, exhilarating panel presentations, and networking with other brave adventurers. Adventure will abound as you brave unimaginable perils alongside experts in legal liability, workers’ compensation, employment law, public safety, organizational thinking, governance, and legislation.
Share a taste of the action with your agency’s thrill-seeking heroes and trusty sidekicks alike; registration is free for members.
Trust the California JPIA to guide you through one of the greatest adventures of your life. Watch for further dispatches about registration, sessions, and speakers over the coming months. Visit our Risk Management Educational Forum website page for more information or send us an email.Print Article
To better connect with current members and reach potential new members, the Authority has an active presence on social media. Members can find information on various topics on the social media channels listed below.
Connect with our latest posts:
“Congratulations to Santa Clarita’s Assistant City Manager Frank Oviedo! Mr. Oviedo was recognized with the 2021 John H. Nail Memorial Award from the League of California Cities. This award recognizes an outstanding municipal assistant who has contributed significantly to their city and to the advancement of the community as a whole. 👏 🎉”
Comment and share:
#TuesdayTip – “Did you know that if you are using the same contractor for several construction projects, you can request that the contractor obtain a ‘Designated Construction Project(s) Aggregate Limit’ endorsement? This approach could save your agency millions of dollars if there is a loss! Members: learn more in the Authority’s Contractual Risk Transfer Manual: http://ow.ly/e7XA50HV379 #transfertherisk ”
Follow us, comment, and share about risk management:
“Grab your boards and check out the @CityofLaQuinta’s new X-Park when it opens this Spring! 🛹 And if your agency is planning a skate park, or already has one, check out the skate park resources in our online library, keyword “skate:” https://cjpia.org/resources/library/ 🤙 @tonyhawk”
Like and follow us:
For information on joining these sites or participating in discussions, please contact Courtney Morrison, Management Analyst.Print Article
Periodically, we will report on updates to our resource library, including updates to existing and newly developed resources. For this edition, we are pleased to share with you the following:
Resource Spotlight: Contractual Risk Transfer Manual
The Contractual Risk Transfer Manual is provided exclusively for use by the Authority’s member agencies. The Authority designed this manual for agency staff responsible for drafting agreement specifications. It includes reference material on contractual risk transfer, including indemnification and insurance specifications guidelines, and risk allocation and financing techniques. Although this manual provides considerable information on contractual risk transfer, it should not be construed as legal advice.
Updates to the manual include new content and revisions to existing content. New content consists of a limitation of liability discussion; sample design professional indemnity language; builder’s risk and installation floater explanations and transportation pollution and pollution liability insurance to the construction agreement; risk transfer topics of controlled insurance programs, livestock and equestrian liability, railroads, unmanned aerial systems, dial-a-ride, AB 5, and AB 2257 – independent contractors; and Live Scan under frequently asked questions.
Revisions include updates under other provisions and requirements to proof of insurance, duration of coverage, notice of cancellation, additional insured status, pass-through clause, and self-insured retention; umbrella or excess liability insurance; waivers of subrogation; separation of permits and facility use agreements; instructor agreement changed to independent contractor with additional requirements; public agencies agreements; cyber liability; environmental issues; bonds; participant waiver and release discussion and participant waiver; exemption from workers’ compensation form; and modifications to the coverage analysis matrix.
The Agreement for Tree Maintenance Services template for agencies that contract with a third-party service provider for tree maintenance services is a new resource available to members. The template sets forth terms and conditions and an extensive scope of services exhibit to assist the member with determining the types of services to be provided.
Tree Inspection Guidelines are available to assist with mitigating liability exposure associated with trees and to provide for the care and protection of trees to maximize their benefits. The guidelines were established to assist with maintaining and inspecting public trees and supporting tree preservation efforts in construction and development areas.
These resources can be accessed and downloaded in the Library section of the Authority’s website, cjpia.org. Resources available in Word format are for members to customize to agency-specific policies and procedures.
If you have any questions, please contact your regional risk manager.Print Article
On Monday, January 24, the Authority relaunched our Report A Claim solution. The new Report A Claim is hosted in our risk management information system platform, Ventiv IRM. Member employees with access to the Report A Claim solution will find fillable forms for three general areas of claim reporting: third-party liability, property, and other claims. The Report A Claim button is found on cjpia.org as part of the lower menu ribbon.
Third-party liability claims concern employment liability and bodily injury, personal injury, or property damage to a third party resulting from a member activity — including automobile liability and liability due to contractors or vendors hired by the member. Property claims concern first-party property, earthquake, mechanical breakdown of machinery, and first-party vehicle physical damage, meaning property owned by or in the member’s care, custody, or control. Other claims concern first- and third-party claims from the following programs: pollution, crime, cyber, special event, vendors/contractors, and foreign travel.
When successfully submitted, the forms are emailed to the Authority’s third-party administrators to begin the claim administration process, and an acknowledgment email is sent to the submitting member employee. Carl Warren and Sedgwick are the Authority’s third-party claims administrators for liability and property and other claims, respectively. All property and other claim submittals are also sent to the Authority’s liability and insured programs managers for review to ensure claims are appropriately matched to the corresponding coverage.
Workers’ compensation claims are supported through a button on our website that links the user directly to the Sedgwick intake system. Sedgwick is the Authority’s third-party administrator of workers’ compensation claims.
Contact your regional risk manager for questions about reporting claims or for more information on the new Report a Claim system.Print Article
THE COURT REPORT
California Supreme Court Confirms Worker Friendly Evidentiary Standard for Whistleblower Retaliation ClaimsBy Jorge J. Luna, Partner; Maria G. Arroyo, Associate; Nate J. Kowalski, Partner; Irma Rodriguez Moisa, Partner, Atkinson, Andelson, Loya, Ruud, and Romo
Originally published on January 28, 2022. Reprinted with permission from Atkinson, Andelson, Loya, Ruud, and Romo.
On January 27, 2022, the California Supreme Court clarified the evidentiary standard applicable to whistleblower retaliation claims under California Labor Code Section 1102.5 in Lawson v. PPG Architectural Finishes, Inc. The worker friendly standard makes disposing of whistleblower retaliation claims exceptionally challenging prior to trial due to the heightened burden of proof placed on the employer.
Mr. Lawson is a former Territory Manager for PPG Architectural Finishes, Inc. responsible for stocking and merchandising PPG’s paint products at Lowe’s Home Improvement stores. In Spring 2017, Mr. Lawson claimed that his supervisor ordered him to intentionally mistint slow selling paint products by purposely tinting the products to a shade not ordered by the customer thereby enabling PPG to avoid buying back what would otherwise be excess unsold product. Mr. Lawson anonymously reported this mistinting practice to PPG’s central ethics hotline, which led PPG to investigate. PPG’s investigation resulted in Mr. Lawson’s supervisor discontinuing the mistinting practice. Nonetheless, Mr. Lawson’s supervisor remained with the company and continued to supervise Mr. Lawson. Mr. Lawson claims that his whistleblowing resulted in poor evaluations, a performance improvement plan, and eventually being fired. PPG argued that Mr. Lawson was fired for legitimate reasons, such as Mr. Lawson’s consistent failure to meet sales goals and his poor rapport with Lowe’s customers and staff.
US District Court
Mr. Lawson filed suit against PPG in US District Court claiming that he was fired in violation of California Labor Code 1102.5. Before trial, PPG tried to dispose of the case using a dispositive motion. The Court applied a three-part burden shifting framework known as the McDonnell Douglas test and dismissed Mr. Lawson’s claim. The McDonnell Douglas test allowed PPG to escape liability because PPG was able to present legitimate, non-retaliatory reasons for firing Mr. Lawson despite Mr. Lawson showing that he had been retaliated against due to his reporting of the mistinting practice.
9th Circuit Court of Appeals
Unhappy with the US District Court’s decision, Mr. Lawson appealed the dismissal to the Ninth Circuit Court of Appeals arguing that the District Court applied the wrong evidentiary test. In evaluating the case, the Ninth Circuit Court of Appeals noted that there was a lack of uniformity when evaluating California Labor Code claims under Section 1102.5. The Ninth Circuit asked the California Supreme Court to decide on a uniform test for evaluating such claims.
California Supreme Court
The California Supreme Court responded to the Ninth Circuit Court of Appeals’ request on January 27, 2022. The California Supreme Court rejected the contention that the McDonnell Douglas burden shifting analysis applied to California Labor Code 1102.5 claims. Instead, it confirmed that the more worker friendly test contained in California Labor Code Section 1102.6 governed. Under this less stringent analysis, the employee is only required to show that it was more likely than not that retaliation for whistleblowing was a contributing factor in the adverse employment action. Once this burden is satisfied, the employer must show with clear and convincing evidence that it would have taken the same adverse employment action due to a legitimate and independent reason even if the plaintiff had not engaged in whistleblowing. Clear and convincing evidence is a showing that there is a high probability that a fact is true, as opposed to something simply being more likely than not.
The California Supreme Court’s decision in Lawson v. PPG Architectural Finishes, Inc. is important to employers because it reinforces a more worker friendly evidentiary test under California Labor Code 1102.5. The varying evidentiary burdens placed on an employee versus the employer makes it extremely challenging for employers to defeat such claims before trial.
The California JPIA’s dedicated, knowledgeable employees are key differentiators that set the Authority apart as a leader in the self-insurance pooling community. This month, the Authority celebrates four employees who received promotions and new responsibilities in recognition of their commitment to providing exemplary service to the Authority and its member agencies.
The Authority is pleased to announce the promotions of Nikki Salas from human resources manager to administrative services director, Ryan Thomas from training and loss control specialist to senior training specialist, and Maria Daniels from office assistant to administrative assistant. Training Manager Joe Eynon will retain his title while assuming a new leadership role within the training division.
“This recognition honors individual growth and advancement within the Authority,” said Chief Executive Officer Jon Shull. “As Nikki, Joe, Ryan, Maria, and others on the Authority staff expand their roles, they will be able to support our members with an even deeper understanding and experience.”
As administrative services director, Salas will add four direct reports, including Management Analysts Abe Han and Courtney Morrison and Administrative Assistants Edith Avina and Lyndsie Buskirk.
“My new responsibilities will focus on additional internal support for the Authority,” said Salas. “I’m excited to work with a new functional work team, including Abe, Courtney, Edith, and Lyndsie, because of the opportunity to better understand the internal flow of both member services and public affairs.”
“I’m thrilled about reporting to Nikki,” said Han. “She’s very responsive and proactive about removing hurdles or barriers to achievement.”
Training Manager Joe Eynon, who joined the Authority in 2005, oversees all aspects of the training program. During his tenure, training has played an integral role in supporting risk management and good governance, while technological advancements have enabled an innovative learning management system and enhanced training delivery resources. In addition, Eynon now has assumed formal and functional management of the training team, including Senior Training Specialist Ryan Thomas, Training Coordinator Michelle Aguayo, and Administrative Assistants Denise Covell and Maria Daniels.
“Now, in addition to managing the development of content and resources, Joe will be responsible for supervising employees,” said Salas. “He is phenomenal at connecting with employees, identifying and responding to needs, and quickly and effectively making things happen.”
Senior Training Specialist Ryan Thomas, whose municipal experience includes roles with the cities of Bellflower, Costa Mesa, and Paramount, excels in curriculum development, learning, and training. As the integration of new, virtual learning environments has extended his expertise in broadcast technology, webinar, and teleconferencing platforms, he will continue to grow and expand the Authority’s digital presence and multimedia resources.
“Over the past few years, the Authority has enhanced its curriculum development efforts, in terms of both scope of trainings—such as adding more public safety, supervisory, and human resources training programs—and modes of training,” said Thomas. “With a new learning management system and studio, we can supplement traditional, classroom-based training with online, video-based training for our members based on their preference and needs.”
“What I love about this model,” said Salas, “is that every member will have their training delivered to them in the format that works best for them.”
Administrative Assistant Maria Daniels, who supports training operations, commemorated five years with the Authority in November 2021. Daniels will continue to flex her exceptional customer service skills at the training division’s help desk while also engaging in more substantive projects.
“I’m so excited for Maria,” said Salas. “She is the voice of the Authority, the front-facing person on the phone when members call with technical issues. This promotion recognizes her hard work and passionate support of our members.”
According to Salas, these promotions and realignments optimize talent and workload and streamline internal operations, ensuring the integrity of the Authority’s responsiveness and service to members: “It’s about continuity and consistency, rejuvenating our good work,” she said. “Everyone’s out there, doing what they were trained to do, shining in their individual areas, and building strong skills for the future.”
Please join us in congratulating Nikki, Joe, Ryan, and Maria as they take on their new responsibilities!Print Article