U.S. SUPREME COURT: COURTS MAY ONLY COMPEL CLASS-WIDE ARBITRATION IF EXPRESSLY AGREED UPON IN EMPLOYMENT ARBITRATION AGREEMENT

Jaimee K. Wellerstein, Esq., Bradley & GmelichCALSAGA Network Partner

In a split 5-4 decision in Lamps Plus, Inc. v. Varela, No. 17-988 (Apr. 24, 2019), the U.S. Supreme Court held that courts may only compel class action arbitration where the parties expressly declare their intent to be bound by such actions in their arbitration agreement. The holding and rationale are important to employers because the Court decisively ruled that class arbitration “fundamentally” changes the nature of the “traditional individualized arbitration” envisioned by the Federal Arbitration Act. Thus, the Supreme Court said, “Courts may not infer from an ambiguous agreement that parties have consented to arbitrate on a classwide basis.”

Following the Supreme Court’s ruling, arbitration agreements must unequivocally state that the parties agree to resolve class actions through arbitration in order to proceed this way. Courts cannot compel the parties to arbitration when an arbitration agreement is ambiguous about the availability of class arbitration.

Employer Takeaway: This ruling is a win for employers. Courts can no longer impose class-wide arbitration unless the employer’s arbitration agreement clearly authorizes this. Only express agreements between the parties can lead to class arbitration. Companies, along with their counsel, should review their employment arbitration agreements to determine whether they comply with the SCOTUS standards.

Jaimee K. Wellerstein is a Partner at Bradley & Gmelich LLP, and the Head of the firm’s Employment Department. Jaimee concentrates her practice in representing employers in all aspects of employment law, including defense of wage and hour class actions, PAGA claims, discrimination, retaliation, harassment, wrongful discharge, misclassification, and other employment related lawsuits. She also provides employment counseling and training in all of these areas. Jaimee routinely represents employers in federal and state courts and in arbitration proceedings throughout the state, as well as at administrative proceedings before the Equal Employment Opportunity Commission, the California Department of Labor Standards Enforcement, the United States Department of Labor, and other federal and state agencies. Jaimee assists as a Legal Advisor to CALSAGA, and is a member of ASIS International. She is rated AV-Preeminent by Martindale Hubbel, the highest peer rating available. jwellerstein@bglawyers.com 818-243-5200.

ESSENTIAL CONTRACT TERMS FOR YOUR SECURITY SERVICES AGREEMENTS

Barry A. Bradley, Esq., Bradley & GmelichCALSAGA Network Partner

While recently teaching CALSAGA’s Security University course on contracts, it became clear that many of your service contracts with your clients are often missing some vital essential terms.  Without going into too much detail in this limited space, examine your contract template and see if they contain each of the following:

  • General Statement of Duties (Scope) Are your duties clear and defined both as to location, post responsibilities, hours, expectations, and especially limitations? Are your officers to use force? Are they just required to observe and report?
  • Term of Contract When does your service agreement expire? Will it automatically renew? Is termination addressed?
  • Price and Payment Terms Are all service hours defined and invoicing defined?
  • Attorney’s Fees If a dispute arises between you and your client (for example, for non-payment), does the prevailing party have a right to recover its reasonable attorney’s fees?
  • Disclaimers Are you making promises you shouldn’t?
  • Indemnification This is perhaps one of the most vital areas of your agreement. Is it in your favor, or are you giving up the farm?
  • Insurance Requirements Are you providing appropriate insurance coverage? Are you required to name your client as an Additional Insured? Are there exclusions that might apply for which you might not have coverage?
  • How Disputes are Resolved? In the event of a legal dispute with your client, where and how will it be addressed?

These are just a few of the necessary provisions that should be addressed in any of your service contracts.  There are additional areas that can protect your business, but at a minimum, you should make sure you have these basics.

LESSON LEARNED:  We all know it is better to use your own contract than one that is drafted by your client. Your basic template can and should fully protect your business.  However, when you must use your client’s contract, you can always negotiate before you enter into the agreement and try to ensure that some of these essential provisions are there that will protect your business.

Contact us to assist you in reviewing your contract template, or any agreements you might be asked to sign.  (Once you sign it, it’s too late to change things.)

Barry A. Bradley is the Managing Partner of Bradley & Gmelich LLP located in Glendale, California, where he heads up the firm’s Private Security Team and oversees the Employment and Business Teams at the firm.  A former Deputy District Attorney, Barry’s practice concentrates on representing business owners in employment, business and licensing issues, as well as defending litigated cases involving negligent security, employment and business related issues.  The firm acts as general counsel for many security companies in California.  Barry is the Legal Advisor to CALSAGA.

He has been conferred an AV-Preeminent Peer Rating by Martindale Hubbell, the highest rating attainable, and has been named a Southern California Super Lawyer for the past 14 consecutive years in the area of Business Litigation.  Barry is also the recipient of CALSAGA’s Security Professional Lifetime Achievement Award. bbradley@bglawyers.com  818-243-5200.

HEAT ILLNESS PREVENTION

Shaun Kelly, Tolman & Wiker, CALSAGA Preferred Broker

It’s that time of the year….not post tax season… Heat Illness Prevention season!

With the change in seasons comes the warmer weather and it is imperative (And required by Cal/OSHA) that all employers train their supervisors and employees on heat illness prevention. The safety of your employees is the responsibility of the employer and if an unfortunate event does occur, Cal/OSHA may  be investigating the event. If so, they will be asking if you have your Heat Illness Prevention Program in place. The investigation will include verification that you have provided training to your supervisors and employees.

A Cal/OSHA study identified the key role that employers play in preventing worker fatalities due to heat illness. The findings highlighted the value of training supervisors so that they can make the fullest use of their power to control safety on the job.

California Code of Regulations, Title 8, Section 3395 Heat Illness Prevention requires all employers to have a Heat Illness Prevention Program which includes the following:

Provide fresh/potable drinking water

Employers must provide employees with fresh, pure, and suitably cool water, free of charge. Enough water must be provided for each employee to drink at least one quart, or four 8-ounce glasses, per hour and the water must be located as close as practicable to the work area. Employers are also required to encourage employees to drink water frequently

Provide access to shade

When temperatures exceed 80 degrees, employees must be provided shade at all times in an area that is ventilated, cooled, or open to air and that is as close as practicable to the work area. There must be sufficient space provided in the shade to accommodate all employees taking rest. When temperatures do not exceed 80 degrees, employees must be provided timely access to shade upon request. Employees should be allowed and encouraged to take preventative cool-down rest as needed, for at least 5 minutes per rest needed.

Have high heat procedures in place

High heat procedures are required of agricultural employers when temperatures exceed 95 degrees. The procedures must provide for the maintenance of effective communication with supervisors at all times, observance of employees for symptoms of heat illness, procedures for calling for emergency medical services, reminders for employees to drink water, pre-shift meetings to review heat procedures and the encouragement of employees to drink plenty of water and take preventative cool-down rest as needed.

Agricultural employers must additionally ensure employees take, at a minimum, one 10-minute preventative cool-down rest period every two hours in periods of high heat.

Allow for acclimatization

New employees or those newly assigned to a high heat area must be closely observed for the first 14 days of their assignment. All employees must be observed for signs of heat illness during heat waves. A “heat wave” is any day where the temperature predicted is at least 80 degrees and 10 degrees higher than the average high daily temperature the preceding 5 days.

Train all employees regarding heat illness prevention

Employees must be trained regarding the risk factors of heat illness and the employers’ procedures and obligations for complying with the Cal/OSHA requirements for heat illness prevention. Supervisors must additionally be trained regarding their obligations under the heat illness prevention plan and how to monitor weather reports and how to respond to heat warnings.

Have emergency response procedures

Employers must have sufficient emergency response procedures to ensure employees exhibiting signs of heat illness are monitored and emergency medical services are called if necessary.

Have a Heat Illness Prevention Plan

Employers must have a written heat illness prevention plan that includes, at a minimum, the procedures for access to shade and water, high heat procedures, emergency response procedures, and acclimatization methods and procedures.

For your reference, linked is a sample of a Heat Illness Prevention Plan.

Shaun Kelly joined Tolman & Wiker Insurance Services in 2005.  He specializes in all lines of property and casualty insurance for industries including contract security firms, agriculture, construction, oil and gas. Shaun received a BS in Business Administration with a major in Finance from California State University in Fresno, California. He is an active member of several industry associations, including the Association CALSAGA, the Kern County Builders Exchange and the Independent Insurance Agents of Kern County. Shaun can be reached at 661-616-4700 or skelly@tolmanandwiker.com.

ALIANZA: BLAZING A TRAIL FOR Q BY TEAM SOFTWARE

Team Software Team

For small companies with distributed workforces, like the contract security industry, site level visibility, managing hourly staff and keeping communication lines open are key areas that can make or break the business. While spreadsheets, emails and texts can suffice for a while, those tools typically aren’t sustainable, growth-enabling or without complexity. For Alianza Security Professionals, a small, private security company based in Dallas, Texas, setting and delivering on high standards is the company’s competitive differentiator. By developing a distinct culture of service and accountability along with adopting security industry-focused technology solutions to support it, the up-and-coming company has gained a foothold in the Texas security market with 11 guards and more than 10 service locations.

Alianza uses Silvertrac’s guard touring solution combined with a new field workforce management toolset for small contractors called Q by TEAM Software. Q enables companies to direct, set and track the operations of their distributed workforce. As an always-on solution, Q helps manage and track productivity, open up communication and retain the employees who are making an impact. In other words, Q strongly aligns with Alianza’s strategic goals, supporting accountability in the field, more communication and, ultimately, better results.

“There are a few problems within the security industry, and they are massive. I know the pain points,” explained J.D. Torres, Alianza Principal and Founder. “Guards are asleep on the job or leaving the property. They don’t show up. They’re late, or don’t know when to show up.

“The biggest benefit of Q so far has been the scheduling piece and the ability for staff to clock in and out on site,” Torres continued. “It’s an accountability tool for them to know when they need to be on site, and I want to make sure my staff have the tools to be successful.”

A technology solution along with appropriate processes help boost the reliability and service quality of Alianza’s workforce. In addition, for Torres, simplicity is key along with a basic set of features, including the ability to communicate the schedule and see who is onsite and on time, in real time.

“The scheduling functionality is cut and dry and much simpler than the previous scheduling software I had been using,” Torres said. “Q really fits my needs right now, especially for my industry.”

With Q’s streamlined scheduling and time and attendance capabilities, Alianza can capitalize on its promise of accountability to customers. Plus, proactively managing the schedule benefits the company in many ways, including overtime prevention, better site coverage and accurate customer billing.

“This is the tool that we depend on, and I tell [our prospective customers] the value that it brings,” said Torres. “I put both Q and Silvertrac in my sales deck. I’m telling my clients what differentiates us in the market, and that’s accountability.”

Along with right-sized, industry-specific technology, Torres and partners back up their accountability promise to clients by building a culture around delivering on high expectations. According to Torres, that helps them win business when up against bigger, more established firms.

“It’s the difference between McDonald’s and Chick-Fil-A. The culture is different, and training is different, but price point is the same,” he said.

Torres explained that Alianza builds their culture and reputation through smart hiring practices, focusing on people eager to grow and pairing skills and experience with the right position.

“I have a different recruiting effort,” said Torres. “I’m not interested in someone who has worked a foot-patrol post for five years. Those people have figured out how to cut corners, and they aren’t interested in growing or moving up. I’d rather have someone who is new to the industry, and who understands what my expectations are.”

Torres and his team also see a need at sites for a bilingual workforce in the Dallas area to bridge communication gaps and ensure continuity among all services providers.

“We’re building a bilingual workforce because there’s a huge disconnect between janitorial contractors, day porter staff and the security staff due to language barriers,” he noted. “They’re handing off important things, like keys, and no one knows what the other is saying.”

Torres and his team have their fingers on the pulse of the security industry. That’s apparent through their approach to service as well as in their hiring practices. And, as an original beta  customer, Alianza has provided pivotal input and feedback on Q to ensure the solution serves the needs of the small market security contractor.

“It was a crazy kind of thing. We [at Alianza] were developing our security offering at the same time TEAM was developing the Q product,” Torres said. He also knew TEAM Software and had  used TEAM’s signature ERP software, WinTeam, before, too. So, there was a familiarity and natural alignment throughout the  beta experience.

“I felt like we had a partnership with TEAM right from the start,” he said. “TEAM seems like it’s a part of my company. That’s where the real value is. And, that’s who I want to be for my clients. I want to give them the kind of service that TEAM is giving us.”

 

About TEAM Software

TEAM Software develops financial, operations and workforce management solutions for contractors with distributed workforces of any size, with a focus on the building service

and security industries. TEAM’s efficiency-enhancing technology transforms business management and drives profitability. TEAM’s industry-specific solutions range from a complete enterprise software ecosystem to a right-sized workforce management toolset that connect key components of customers’ businesses. Founded in 1989, TEAM is an Omaha, Nebraska-based technology company with more than 400 customers all over North America. For more information, visit teamsoftware.com.

About Alianza Security Professionals

Alianza is a private security company licensed by the Texas Department of Public Safety, that provides integrated security, private investigation services and risk management services to corporate, individual and non-pro?t clients. Alianza leadership has been inside the industry for decades, have identi?ed the “pain points” in the industry and have worked tirelessly to separate themselves from the rest of the pack.  How? Through training, communication, coordination, execution and methodology. Visit alianzasecure.com to learn more.

6 TIPS TO RETAIN GOOD SECURITY OFFICERS

Kwantek Team

Turnover is always a challenge in the contract security industry, but not all employee turnover has the same impact.

While losing mediocre employees creates more work for you, losing your best security officers can impact the health of your business.

If you’re struggling to retain your best security officers, follow these six tips.

Ensure Job Fit From Day One

No one wants to work at a job that prevents them from spending time with their families or forces them to work in an environment that clashes with their preferred working styles.

To keep your security officers long-term, make sure you’re putting them in an ideal position on their first day on the job. Follow these tips to ensure you’re hiring the right person for the job:

  • Tip #1: Determine what shift they want to work. The hours that people work have an impact on their personal time. To retain your security officers, put them on shifts that complement—rather than impede—the things they want to do in their time off of work.
  • Tip #2: Find out how they like to work. Some people thrive when they’re surrounded by others. Others thrive when working alone. Determine the ideal working conditions for each new security guard, and place them in roles that match those preferences.
  • Tip #3: Ascertain their long-term goals. Some employees may have goals to move into supervisory positions. Others get bored easily and want to learn something new every few months. Find out what new security officers are looking for in the future, then, for example, you can create paths to promotion or plans to move them into new roles.

Sometimes, you can ascertain the answers to these questions during an interview. However, when people are just hoping to get hired, they may give you the answers they think you want to hear rather than truly honest answers.

A better way to find out what each new security guard needs is to use Kwantek’s Working Style Assessment. Our pre-hire assessment asks prospective employees a series of questions that help you determine the best job fit for new security officers, providing you with honest answers about each employee’s preferred working conditions, ideal environments, and long-term goals.

Provide Great Security Officers with Incentives to Stay

Getting new employees in the right role is just step one of retaining them. Once they’re in their positions and doing great work, you need to make an effort to incentivize them to stay.

And while the most obvious incentive is increased pay, that may not always be a viable option for your business. Luckily, there are plenty of other ways to keep great security officers engaged:

  • Tip #4: Offer unique benefits. Even if you can’t afford frequent salary increases, you can make your position better than others your security officers may be considering. Consider increasing the amount of paid time-off your best security officers get, moving them to locations closer to their homes, or offering free snacks and coffee at work.
  • Tip #5: Create a great culture. Creating a great culture doesn’t require a monumental effort. Sometimes, it’s as simple as making your employees feel heard. Build a culture where everyone feels valued by making sure employees have regularly scheduled meetings with their supervisors where they’re free to ask questions and share concerns.
  • Tip #6: Provide incentives to stay. Consider offering officers an annual bonus for each year they stay on the job, giving your most tenured officers their choice of shifts or locations, or creating a promotion path that satisfies the goals of ambitious officers.

Retaining your best security officers isn’t always a matter of offering the highest salary. By providing your security officers with a work environment that makes them feel comfortable and valued—and benefits that provide them with a better work-life balance—you can create positions that are much harder for great security officers to walk away from.

Avoid Turnover and Retain Your Best Security Officers

Sometimes, high turnover—even among your best employees—feels inevitable in the contract security industry. However, if you put people in the right roles from day one and offer unique incentives for great employees to stay with your company, you can stop the revolving door and start retaining your best security officers long-term.

If you’re interested in learning more about how Kwantek’s Working Style Assessment can help you identify the best candidates in the pre-hire process, click here to schedule a demo.

 

HOW TO CUT OPERATING COSTS FOR SECURITY BUSINESSES

Mark Folmer, CPP, Msyl, TrackTik

When you run your own security business, there are several important investments that help you provide quality service to your clients such as training for security guards, uniforms and equipment. However, with modern management options, you can streamline your business, cut costs, deliver quality service and keep your security business profitable. Here’s how you can cut operating costs by 35% and increase profits for your security business:

Improve Service with Tracking and Data Analysis

Security companies live and die based on their ability to provide quality service to their clients. Tracking key field processes and using data analysis to improve your security performance is vital for lasting success in the security industry. By using software to track the location of security agents in real time, you’ll be better prepared to contact the nearest available operatives when additional support is needed. As you improve your team’s incident response time, client satisfaction will increase, allowing you to retain clients and gain valuable testimonials for attracting new business. Digital reporting software can also make it easier to analyze patrol and incident-related data. By matching tracking data with guard-uploaded incident pictures, video, and written comments in a digital database, it becomes significantly easier to review information so you can make informed decisions for streamlining your field operations.

Track Business Intelligence Data

Leveraging data isn’t just important for improving your team’s fieldwork. And while different security companies may value different KPIs (key performance indicators), there’s no denying that one of your top priorities should be to optimize operations and maximize your return on investment with each client. Investing in good business intelligence technology is essential for your success. With business intelligence tools and smart analytics, it becomes easier to identify common profitability pitfalls, such as inefficient employees, a high guard turnover rate, or client sites with costly overtime expenses. When your software can quickly match your accounting and scheduling data against your KPIs, it becomes easier to identify areas where change is needed. With business intelligence data at your fingertips, you can gain a better understanding of your business’s direct costs, anticipate staffing and coverage needs, and identify trends that could be hurting your profitability. With better data, you can make smarter budgeting decisions for the future.

Save Time by Streamlining Back Office Administration

Serious security business entails a large amount of documentation in the handling of your security agent workforce. That means a lot of time spent on administration and office work, covering everything from scheduling to payroll. If you can streamline these necessary processes, your team can spend less time on mundane day-to-day tasks and concentrate their efforts on delivering quality security service. When computer programs calculate, you gain efficient, controlled data that is automatically tracked and reported. Alternatively, modern scheduling software allows you to input important data regarding client needs, guard availability and certifications, reduce unbillable overtime, avoid costly errors, and other factors to automatically generate future schedules that match the right guards to the right clients, at the right site. Automating these and other similar processes will save you time and money by helping you avoid human error in schedules, payroll reports, and other documents. In addition, these reports will give you greater understanding and control over your office operations, helping you identify ways to allocate funds towards optimizing security operations. And you’ll be closer to your goals of faster, better service.

Go Paperless!

Do you have stacks of paper piling up in your office? Incident reports, contracts, invoices, schedules, and other paper documents can add up quickly. Not only do the costs of paper and other printing supplies add up over time; you’ve likely experienced the workflow issues of misplaced or lost documentation at least once (per week…). Modern back office management software allows you to replace paper reporting by digitally distributing important information to your clients, suppliers, and employees. These streamlined reports will ensure that vital information is never lost in a stack of papers so you can keep your clients happy–which is ultimately your best way to stay profitable. With digital reporting software, important information can be sent to clients and guards alike via email, text message, or push notification, creating a digital dialogue that is easily tracked and managed. As you digitally track your field operations, automate select tasks, and use intelligent data, you’ll be better equipped than ever to improve your security business operations and increase your profitability.

“WE DO WHAT OUT THERE?”

HAVE YOU CONDUCTED YOUR POST SURVEYS YET?

Barry A. Bradley, Esq., Bradley & GmelichCALSAGA Network Partner

The best way to defend your business when you are hit with a wage and hour lawsuit (whether by an individual, a class action, or a Private Attorneys General Act [PAGA] claim), is to have conducted a well-tailored post survey.  It is a tool that your account managers should implement to show that your company has gone through the mental and physical assessment of each post and shift to be compliant with the law.

In just a few minutes, a post survey will assist you in helping to determine such things as:

  • Are the officers able to be provided off-duty meal breaks?
  • If not, why not?
  • Are valid on-duty meal period consents and policies in place?
  • Are the officers taking their required rest breaks?
  • Are the rest breaks truly “off duty?”
  • Is there adequate seating in compliance with the Labor Code?
  • Is there heat illness prevention policies and procedures in place?
  • Is there potable water available?
  • In interviewing the officers, are there blind spots about which you weren’t even aware?

These are just a few of the questions that can be answered in a good survey.  Your particular situations will be different, depending upon the type of client you have and the type of security services offered.

If makes it much easier for your attorneys to defend you when we can pull out your completed site surveys to show that you made valid, good faith actions to comply with the law. In short, it makes us happy.  (And we know how you care about your attorney’s happiness – it brings you good karma!)

If you haven’t yet prepared or updated your specific policies to be compliant, or if you need post surveys prepared for your particular line of work, don’t hesitate to contact your counsel to help you. We often “train the trainer” and, in these instances, train the account managers so they know how to do these surveys on their own.

A little effort on your part will not only save you grief, but ultimately a lot of money.

Barry A. Bradley is the Managing Partner of Bradley & Gmelich LLP located in Glendale, California, where he heads up the firm’s Private Security Team and oversees the Employment and Business Teams at the firm.  A former Deputy District Attorney, Barry’s practice concentrates on representing business owners in employment, business and licensing issues, as well as defending litigated cases involving negligent security, employment and business related issues.  The firm acts as general counsel for many security companies in California.  Barry is the Legal Advisor to CALSAGA.

He has been conferred an AV-Preeminent Peer Rating by Martindale Hubbell, the highest rating attainable, and has been named a Southern California Super Lawyer for the past 14 consecutive years in the area of Business Litigation.  Barry is also the recipient of CALSAGA’s Security Professional Lifetime Achievement Award. bbradley@bglawyers.com  818-243-5200.

SAFETY & THE IMPORTANCE OF ACCIDENT INVESTIGATIONS

Shaun Kelly, Tolman & Wiker, CALSAGA Preferred Broker

At the beginning of each year, I always reflect back on the prior year to see where I could have improved and identify which area of the operations need the most attention. In doing so, safety always comes to mind, because it involves all operations and has a significant effect on the overall efficiency and productivity on the business of my clients. Safety is a process that always needs to be updated and modified to maintain a safe workplace for your employees and others. This reminded me of accident investigations and how important they are in the safety process.

All accidents should be investigated and it’s for one simple reason, to stop them from happening again. This may sound quite basic but let’s put it into reality, the main purpose of an investigation is to identify the causation factors and then identify any preventative or corrective action to prevent reoccurrence.

There are many other reasons for investigating accidents including legal litigation, insurance claims, workers compensation, company reputation and sometimes contractual requirements.

Please understand and remember that any investigation has certain deliverables and expected outcomes. This is why we need to continually assess and evaluate safety policies and procedures throughout the investigation, so that we can proceed down the appropriate path.

To refresh your memory, the following are the basic stages in an accident investigation:

STAGES IN AN INVESTIGATION

  • OBTAIN FACTS
  • DETERMINE THE CAUSES
  • DETERMINE THE CHANGES NEEDED
  • RECORD THE FINDINGS
  • COMMUNICATE THE FINDINGS
  • REVIEW ACTION

 

OBTAIN THE FACTS

Establishing what is relevant and what is not can be time

consuming. However, this information can be obtained by:

  • Inspecting the immediate scene and equipment
  • Interviewing the person directly involved with the accident
  • Interviewing witnesses to the accident
  • Reviewing procedures and training

 

Inspecting the immediate scene and equipment:

The accident scene should be inspected as soon as possible

after the accident. Particular attention should be given to

the following to see if any of them had a bearing on the

accident potential:

 

  • Positions of people
  • Any personal protective equipment
  • Tools and equipment
  • Orderliness/tidiness
  • Procedures

Wherever appropriate, photographs and/or sketches should be

taken of the scene. This is of particular importance where

there is a likelihood of the scene being disturbed – e.g. to

make the area safe.

 

Interviewing:

Ideally this should be done in familiar surroundings so as

not to make the person being interviewed feel uncomfortable.

If the person is not too seriously injured, then the accident

site is ideal as the person can explain what happened.

Remember this should be an interview to determine the facts

not an interrogation. Witnesses should be interviewed one at

a time.

 

Reviewing procedures and training:

The work procedures set out in appropriate guidance and any

risk assessments should examined to see if they existed and

were adequate, if they we were understood and followed.

It is also important to establish:

 

  • Any training received relevant to the accident
  • Any past incidents/accidents
  • Any risk assessments in relation to that particular

activity to see if any weaknesses have been previously identified.

 

Determine the causes:

After all the facts have been ascertained the causes can be

examined.

 

Obvious causes: The obvious causes are easy to find.

They are brought about by an unsafe act or condition. Unsafe

acts usually stem from poor safety attitudes and indicate a

lack of proper training or information.

 

Root Causes: These are personal or job factors that are

brought about by failures in organization and the

management’s safety program. This can include factors such

as;

  • Lack of supervision or discipline
  • Lack of training
  • Lack of management awareness

Determine what changes are needed

The purpose the investigation is to prevent a reoccurrence.

To do this some practical measures must be recommended and

carried out that will demonstrate a commitment to reduce

this identified risk. The remedial action may be short and

/or long term and may involve changes to the physical

environment – e.g. putting in place new guarding on

machinery – and/or procedural changes – ensuring an adequate

training program.

 

Record findings

The findings of every accident investigation must be

recorded in a systematic way to enable the report to be read

by the appropriate people who are responsible for reviewing

and implementing necessary changes. It also provides a

historical record of the accident that may be useful in the

future.

 

Communicate findings

Good communication is a very important part of the safety

effort. Information of an accident and remedial actions

should be passed to all relevant staff who may encounter

similar incidents.

 

Review action

Where action has been implemented as a means of reducing the

risk of an accident reoccurring, those actions must be

periodically reviewed to ensure that they remain

appropriate.

 

I have included a Sample Accident Investigation Form for your review. There are many different types of investigation forms available.

Please feel free to call me if you have any questions and have a great 2019!

Click here to view a Sample Accident Investigation Form

Shaun Kelly joined Tolman & Wiker Insurance Services in 2005.  He specializes in all lines of property and casualty insurance for industries including contract security firms, agriculture, construction, oil and gas. Shaun received a BS in Business Administration with a major in Finance from California State University in Fresno, California. He is an active member of several industry associations, including the Association CALSAGA, the Kern County Builders Exchange and the Independent Insurance Agents of Kern County. Shaun can be reached at 661-616-4700 or skelly@tolmanandwiker.com.

EDUCATING YOUR CLIENTS ON THE PERILS OF REST PERIOD VIOLATIONS

Annette M. Barber, Esq., Bradley & GmelichCALSAGA Network Partner

How many times have you attempted to discuss rest periods and the need for relief with your clients?  How did that go?  Did you receive a glazed look that showed lack of interest, or did you receive a hostile response such as “Those are your employees – they are not my responsibility!”  If you are like a lot of account managers, you might have decided not to pursue the issue further and silently vowed to yourself that you would handle this.  Did I summarize this scenario accurately?  If yes, you are not alone.

Unless you have been living in a cave for the past two years, you know that the ruling in Augustus v. ABM Security Industries, Inc., significantly changed the way security professionals operate their businesses. It doesn’t matter any longer if you have one lone guard at a site:  he or she must receive two paid ten minute breaks each day, free from all duties, or you must pay the employee an additional hour of pay for each day.  End of story.

Some businesses may decide to pay the extra hour due to no other reasonable options.  But some of you may decide to partner with your clients to try to develop options to stay legally compliant without incurring additional costs.  That requires you to educate your clients and to also be creative.

Educating your clients shouldn’t be so difficult, right?  But your client’s “What’s in it for me?” response when you approach the topic is not for the faint of heart.  Here is an approach that might work.

  1. Start with the positives – we value your business, we want to ensure the coverage you want and need, we want to limit your liability and prevent co-employment issues.
  2. The ruling in Augustus was unexpected and impractical, but is now the law and we need to comply.
  3. We will be charged one hour of pay for every violation if we cannot give our employees rest periods free from all duties.
  4. And unfortunately, California Labor Code section 2810.3 now makes clients of staffing companies (which guard companies fall under) share in the liability for wage and hour violations of the staffing company, which can include penalties and interest. You could be named in a wage and hour class action lawsuit, which are on the rise.
  5. So we would like to partner with you on reaching some solutions to allow both of us to stay compliant.

At this point, you should offer a few solutions, preferably those that will not cost the client more money, but the reality is that both you and the client should share in any extra costs.

It may be that it is so important to the client that a lone guard not receive an off duty rest period and the client is willing to pay an additional hour of pay (doubtful).  Or maybe the client will agree to let the officer put up a sign that says “Back in 10 minutes.”  Maybe the client has a receptionist that could fill in for an officer twice a day.  In the grand scheme of things, specifically an 8-hour shift, two 10-minute breaks shouldn’t be a deal breaker.

This issue will need to be readdressed as service issues arise, service needs change, staffing changes, etc.  If you are having concerns about a client and/or staying compliant with this requirement, don’t hesitate to reach out to counsel experienced with the security industry.  Wage and hour lawsuits are the most commonly filed lawsuit in the state of California.  Don’t let your company be another statistic.

 

Annette M. Barber is Special Counsel on Bradley & Gmelich LLP’s Employment Team.  She represents clients providing employment advice and counsel in all aspects of hiring, performance management, training, compensation, and termination. Ms. Barber spent the past 17 years working with a global security company of 100,000 U.S. employees as an employment law attorney and then as Corporate Vice President directing HR Compliance nationwide for all 50 states, Puerto Rico and Guam.

Annette drafts and revises policies, handbooks, and extensive training materials for the firm’s clients.  She is a member of the Association of Workplace Investigators, numerous bar associations and employment law sections.  abarber@bglawyers.com / 818-243-5200

AN INSURANCE GUIDE: THE MINDSET OF AN UNDERWRITER IN THE PRIVATE SECURITY INDUSTRY

Blair Brownyard, Brownyard Programs

To the business world, insurance is a necessary evil. However, with insurance costs increasing each year, many security companies would go naked, if their clients didn’t insist that they carry insurance. No doubt after your latest renewal increase, this seems like a reasonable proposition. To minimize your next rate increase, here is the mindset of an insurance underwriter who is asked to underwrite and price the liability insurance of a private security company.

With most products, you know what the cost is when they are sold. Not so with insurance products; an insurance company doesn’t know how much their product costs until 5-10 years after they have sold it. And that’s why the pricing of liability insurance is so unpredictable. To give themselves an edge in predicting how much they pay in claims versus how much they received in premiums, insurance companies develop underwriting guidelines/criteria/signposts, which are supposed to help them determine the probability of losses with a specific type of insured to help them make a profit. The four basics of underwriting guidelines are:

  • Prior Loss/Claim Experience
  • Type of Operations
  • Company Management and Sophistication
  • Contract Language
  1. Prior Loss/Claim Experience

This is one of the most critical elements in underwriting a company. Review your current claims through your insurance broker and be aware of your current claim expenses and reserves annually. A poor claim history has a big impact on your premium costs. A poor claim history is due to a number of factors, some of which can be avoided based on the factors below.

  1. Types of Operations

Different clients will bring different risk to your company because many types of operations have historically brought more likelihood of claims. Your large contract with a fast food chain could be enticing for the money but may result in adverse loss experience and a higher insurance premium. Conversely, a gated community client may help reduce your underwriting factors to the carrier, thus decreasing your premiums. Here is a general list of high risk operations that create higher than average premiums. The locations of these operations are also a big factor – the higher the crime in the area, the higher the risk:

  • Anywhere alcohol is served or sold
  • Crowd control at stadiums, events, or concerts
  • Low-income housing
  • Fast food chains
  • Schools
  • Movie Theaters or Malls
  1. Company Management and Sophistication

Underwriting will typically look at a number of factors relating to how well the company is run from a management perspective. Here are three items that help decide how well the company operates.

Screening, Training, and Supervision

Insurance companies look to the business practice of a company in their requirements for education, training, and supervision of employees. This varies across states and the industry as a whole. The 2018 28-member ASIS standards and guidelines commission has decided there would only be guidelines suggested within the industry and not a set industry standard for all to achieve. With regard to underwriting, underwriters will still look for the highest required guidelines in the industry and rate the company to those suggested guidelines.

Pay Scale and Benefits Given to Employees

Offering higher pay attracts higher qualified, better trained applicants. This translates to smarter, more qualified employees who perform better. And if the company provides health, life, or pension/profit sharing plans, this makes for a more satisfied and healthier employee who is less likely to act negligently or file frivolous workers comp or employee practices claims.

What is the Education/Background of the Principals

Experience in private security, law enforcement, or military, etc. as well as involvement in security management training through organizations like ASIS International or other business programs are positive impacts on the operations of the company and show underwriters an ability of management to overcome obstacles.

  1. Contract Language

Insurance companies may look at your contracts to see how you are protecting yourself in the event of a claim. Unfortunately, your Clients, the Public, and sometimes even the courts think guard companies are deep pockets to cover losses in the event of personal injury. This is attempted by clients in two ways:

  • Indemnification Agreements
  • Additional Insured language

INDEMNIFICATION AGREEMENTS

In construction or service contracts, a hold-harmless or indemnity agreement will be included in the general contractor’s contract to the subcontractor. In order for your security company to limit claim expense and payments, the clause should not include the liability and mistakes of anyone except your own employees. The larger property managers/owners force many broad form indemnity agreements on the security companies for a deep pocket in the event of any accidents on premises. The good news in California is that an indemnity clause for your client’s sole or willful acts is void by public policy. However, be aware, many will still try to pass it through in their contracts.

Additional Insured LANGUAGE

Closely related to indemnity agreements discussed above, additional insured endorsements are used to increase the obligation of your company to defend and indemnify the owner. This indemnity is usually confirmed to them by a certificate of insurance. Your underwriter will be asked to approve additional insured endorsements for many companies by contract. But as parties requested have less and less relation to the contract, the underwriter will likely question the need for such an endorsement. Any additional insured and indemnity requests need to be scrutinized here to limit the exposure for claims. Like all contracts and RFPs, it is advised to have counsel review these clauses to ensure your client is not trying to shift a disproportionate amount of risk to your company.

 

All factors discussed above are the basics for all underwriting in the security industry. Many might dive deeper into data on location of operations or screening processes. And many might try to look at seemingly unrelated issues. This is all part of the investigative process to ensure the risk is being adequately evaluated for claim potential. This is not an exact science, maybe someday we will have exact predictions of claims, but we are not there yet. It is important to note that security risks are high-severity risks and not high-frequency; e.g. many companies can go decades without one liability claim and then get hit with a monster claim. That is the nature of a security risk; a very unpredictable nature. For now, the underwriting process is a moving target for all carriers, and security companies will be best served by building a trusting, open relationship with a reliable carrier who truly understands their industry.

 

Blair Brownyard has been the VP of Brownyard Programs, Ltd. and has worked exclusively with the security industry for the past 8 years. He has a J.D. from Touro Law in Central Islip, NY. Brownyard Programs, Ltd. has underwritten the security industry for the past 25 years and was purchased by Crum & Forster Insurance in 2015 to join forces with the other oldest name in security insurance, CoverX Specialty. Together, Brownyard Programs and the experienced team rebranded as Crum & Forster Specialty, have a suite of innovative products and services to grow with the security industry into the next generation.

This information contained herein is provided for information purposes only and is not intended to be a representation of coverage that may exist in any particular situation under a policy issued by one of the companies within Crum & Forster. All conditions of coverage, terms, and limitations are defined and provided for in the policy. This information is intended for use as a guideline and is not intended as, nor does it constitute, legal or professional advice. In no event will Crum & Forster or any of its affiliates be liable in any manner to anyone who has access to or uses this information.