Nonprofits Insurance Alliance

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Emergency Preparedness – Active Shooter

While most of us will never experience an active shooter emergency, the number of incidents is on the rise. Given this fact, and the seriousness of these events when they happen, it’s important to be attentive to both education and prevention.

According to the U.S. Department of Homeland Security, an active shooter is an individual actively engaged in killing or attempting to kill people in a confined and populated area. In most cases, active shooters use firearm(s), and there is no pattern or method to their selection of victims.

There is not one, single profile of an active shooter. Personality traits do not follow any set pattern, vary widely, and are usually too general to be useful. According to the Department of Homeland Security, many active shooters follow a violence pattern that begins with negative situations, moves to intense negative feelings and the idea that violence is the right way, followed by planning the violent incident. Some workplace shooters are trying to right a perceived wrong, such as a conflict on the job or termination, and may have a specific target. Many others have no specific target, but may have an ideological goal. Perpetrators are relatives in 40% of female workplace homicides, while only 2% of perpetrators against males were relatives.

Active shooter incidents are often unpredictable and evolve quickly. Recognizing potential threats and reacting as quickly as possible cannot be emphasized enough. Many survivors of active shooter incidents have said that they heard noises, but weren’t sure they were gunshots. Every second counts. An active shooter situation will put you under extreme stress, so much so that your ability to think straight and make good decisions may be impaired. It is important that you have trained, practiced, and mentally rehearsed what you will do in this type of emergency, so you can react without hesitation.

The City of Houston Mayor’s Office of Public Safety, with funding from the U.S. Department of Homeland Security, produced the Run, Hide, Fight video. This is an excellent free resource for training your employees and volunteers and has quickly gained traction as a national standard for active shooter protocol.

While the majority of all incidents from 2000-2013 occurred in an environment related to commerce, you should be sure that active shooter training is part of your workplace violence program. An effective response plan should include procedures to respond to mass casualty threats, such as active shooters, by developing evacuation or sheltering plans that are appropriate and feasible for the facility, a procedure for warning individuals of the situation, and a procedure for contacting the appropriate law enforcement agency.

In your training, encourage individuals to consider the environment in which they work and identify two possible escape routes. If possible, identify a secure location in your facilities where individuals could take cover and hide. Hiding in a secure location has been extremely effective in active shooter situations. The shooter knows there is limited time before law enforcement arrives and will typically move on from locked doors rather than use that time to attempt to force entry.

In an active shooter situation, do not assume that someone else has called 9-1-1. Call if you can do so without slowing down your exit or revealing your hiding place. When calling, be prepared with your exact location (address, floor you are on, section of building, etc.). If you have the information, provide the number of shooters, including a description of the individual(s) and any weapons, their current location, and if there are any victims.

It is important to note that even when law enforcement arrives, the danger is not over. The responsibility of the first officers on the scene is to stop the shooter before they do anything else. Officers will be under stress and prepared to use deadly force. If an officer sees you, they will look at your hands for a threat, so put your hands up, spread your fingers, show them your palms and stay very still.

The U.S. Department of Homeland Security (DHS) aims to enhance preparedness through a “whole community” approach by providing products, tools, and resources to help you prepare for and respond to an active shooter incident. Visit their website to access the many resources available to help your nonprofit with this important area of emergency preparedness.

Winter is Coming – Property Checklist

The holiday season is upon us and with all of the stress generally associated with this time of year, you probably haven’t given much thought to frozen pipes, roof collapses, ice dams, or any of the other property maintenance issues that can lead to water damage. However, as illustrated in one of our recent blog posts, water property damage can be costly, and is often not covered by insurance. Given that there is an increased risk of water damage this time of year, it’s vital that your nonprofit plan and prepare for the upcoming winter season.

If you haven’t read our blog on water damage claims, you may not be aware that typically, property policies exclude water damage unless something else is accidentally or suddenly damaged first, such as with wind or fire. For example, let’s say the gutters on your building are rusty and water is not being properly diverted off your roof. Then a rainstorm comes along and pushes water through the weakened area into your roof and water leaks under the eaves, into your walls, and starts to pool. Because this damage is due to improper maintenance and not a sudden, unforeseen event, it is not covered by your insurance.

Whether it’s a slow leak, a frozen pipe, or a full-fledged flood, water damage can have a negative effect on your organization and its ability to provide services to the community. Not only can water and moisture damage the interior of your building, but it can also damage or destroy fire protective equipment and electrical equipment. Another unforeseen issue that is more likely to arise in the cooler, wetter months as a result of unwanted water or moisture is mold. Like most water property damage, mold damage is generally not covered by insurance, as it is considered preventable with proper maintenance.

While every building is unique, each is at risk for water damage, whether from a minor roof leak, improperly maintained plumbing, or a violently destructive storm. Before the weather takes a turn, give your premises a good lookover for early signs of damage or wear-and-tear, including damaged flashing, gutters and drainpipes, or broken windows. Identify and repair all leaks and cracks in windows, doors, and exterior walls, as well as in the building’s roof, foundation, plumbing and HVAC systems.

A properly maintained building is only part of protecting your organization’s facility from water damage. Also be sure to check all drains, gutters and down spouts for leaf litter, debris and other clogs or obstructions that cause water to collect or travel toward a building. Remember, standing water is a tell-tale sign that water is not draining properly. As a precautionary measure, also consider labeling your water shut-off valves clearly so that they are clear and noticeable, in case of an emergency plumbing situation. Repairing damage early can prevent more extensive damage from winter weather conditions.

Here are links to a few resources from the Insurance Institute for Business & Home Safety (IBHS) for your reference:

Does My Organization Really Need an Employee Handbook?

Despite the fact that there are no state or federal laws that require an employer to have and provide handbooks to their employees, it’s almost universally agreed that having and using a well-drafted, comprehensive, and easy to understand handbook serves a number of legal, practical, and risk preventative purposes, and nonprofits are no exception.

Ideally, handbooks not only provide clear and specific information on a large number of important topics to employees, about both their employment and their employer, but they also provide specific notices to the employee about their rights. These often include rights to any job-protected leave, communication of zero-tolerance policies, information on employee benefits, and much more. If applicable, the handbook is also used to establish and clarify the at-will nature of the employment relationship, performance and disciplinary expectations, and policies on vacation and holiday benefits.

However, even well-crafted handbooks can be victims of the passage of time, as well as changes that take place in the law and in the workplace. Regulatory and legislative action can change what an employer is required to do with regard to their employees — often without time to adequately prepare for that change. In their efforts to remain compliant with these changes, employers should be prepared to revise and update any applicable policies in their handbook to reflect new legal realities.

Similarly, if an employer has always had fewer than 50 employees and later increases their workforce to 51 employees, they would then become subject to a number of new laws. The best example would be the fact this employer, who once was not subject to the Family Medical Leave Act (FMLA) leave laws, would now be required to provide their employees FMLA.  In this case, the handbook that never needed an FMLA policy would have to be revised to ensure employees were aware of their newly acquired rights.

Thus, by their very nature, employee handbooks should never be considered “carved in stone.”  They should be reviewed on a regular basis, annually at a minimum. This review should be performed by experienced employment law counsel to ensure that any and all recent legal and workplace developments are taken into consideration in the review and revision process.

 

Overbroad Employee Confidentiality Agreements

Many employers require employees to sign a Confidentiality Agreement regarding certain data and information that the employee will have access to in the course and scope of their employment. There are certain types of employer data that must be maintained as confidential such as:

  • Client identification or personal health information under the federal Health Insurance Portability and Accountability Act (HIPAA);
  • Personally identifiable information (PII), such as donor names and credit card numbers or employee addresses and social security numbers under privacy and state confidentiality laws.

Additionally, general business information that an employer needs to keep confidential for business reasons to maintain a competitive advantage such as business plans, financial resources, funding sources or customer lists falls within the definition of trade secrets and can be maintained as confidential.  Protecting this data is simple, right? You just have employees sign a broad confidentiality agreement, and that’s that!

Like many areas of employment law, it’s not that simple. In a recent decision of the Second Circuit Court of Appeals, which covers New York, Connecticut and Vermont, the court held that a non-union nonprofit organization violated the National Labor Relations Act (NLRA) by promulgating an unlawful confidentiality agreement and terminating an employee for his refusal to sign the agreement.  The agreement required employees to maintain confidential information protected by HIPAA, but went beyond that and “strictly prohibited” employees from disclosing information with respect to all “non-public information intended for internal purposes,” including ”administrative information such as salaries and the contents of employment contracts.”  The policy also prohibited employees from being “interviewed by any media source, or answering any questions from any media source regarding their employment” or “other workings and conditions” of the employer without the employer’s consent.

When an underperforming and problematic employee was ultimately terminated for his refusal to sign the agreement, he filed an unfair labor practice charge with the National Labor Relations Board (NLRB). Citing the longstanding NLRB rule that discipline imposed pursuant to an unlawfully overbroad employer policy is unlawful, the NLRB, as affirmed by the court on appeal, determined that the termination was unlawful even though in this instance the employee was acting alone. All employees covered by the NLRA, regardless of whether they are unionized, have the right to engage in what is considered “protected concerted activity” under that NLRA, and discipline based on any policy that restricts concerted activity is unlawful.  While a confidentiality policy could prohibit HR or accounting staff from discussing the salaries of other employees, such a policy could not prohibit employees discussing their own compensation rate, or asking their coworkers to discuss this compensation.

Nonprofits should review any confidentiality policies or agreements to make sure that employees covered by the NLRA are not restricted in their ability to discuss or reveal information that involves the terms and conditions of their employment or their rights to engage in protected concerted activity, which would include discussions with co-workers or third parties such as the traditional or social media.

What You Need to Know About Retaliation Claims

Since the United States Equal Employment Opportunity Commission (EEOC) issued its enforcement guidance surrounding workplace retaliation last summer, employers have been on notice to exercise caution when taking adverse action against an employee following protected activity.  Absent clearly documented evidence of a legitimate business reason for adverse action, like termination, such action taken by an employer following an employee’s participation in protected activity may be deemed as retaliatory, leaving the burden on the employers to defend their actions. Protected activity includes such things as:  requesting an accommodation; taking a leave of absence; or participating in an investigation.

Laying out a three-prong test, the EEOC tells us that in order to establish a claim of retaliation, employees merely need to show that: 1) they were participating in protected activity; 2) they suffered some kind of adverse employment action; and 3) there is a causal link between the activity and employment decision.

Unfortunately, even employment actions taken with no retaliatory motive and made in good faith may undergo scrutiny if an employee feels they are being punished. Therefore, while the first two prongs of the EEOC’s test may appear straightforward, the following should be considered as best practices in order to minimize risk and disconnect the link between protected activity and subsequent adverse employment action:

  • Maintain a written policy that is made available to all employees regarding zero tolerance for retaliation, including ways an employee may report actual or suspected retaliatory conduct.
  • Have written employment policies and consistently apply them.
  • Review policies and practices to ensure employees are not deterred from engaging in protected activity.
  • Train managers and supervisors on your anti-retaliation policy and how to handle employee discipline following protected activity.
  • Promptly and thoroughly investigate all complaints.
  • Accurately report job performance on performance evaluations. A below-average performing employee should not receive all superior marks. Use factual examples to support less than satisfactory ratings.
  • Clearly and thoroughly document business decisions your nonprofit may make that employees may consider as adverse (e.g., moving office space or eliminating positions).
  • Document job-related reasons for all actions, including poor performance or unwillingness to perform duties, to link adverse actions to poor performance rather than protected activity.
  • Ensure employees are aware of their job requirements by having up to date job descriptions, acknowledged by the employee.
  • Evaluate options in lieu of termination or discipline, including coaching, performance improvement plans, and additional training, especially if the adverse action is close in time to the protected activity.

Employers should also be aware that while retaliation may be as obvious as a termination, it can also be less recognizable, such as with overlooking an employee for a promotion, directing another employee to engage in harassment or retaliatory conduct, and criticizing or questioning an employee for filing a complaint.

Because the EEOC has linked adverse action to protected activity despite the passage of years between events, it’s critical for employers to always document and consistently apply policies.

While retaliation is prohibited conduct under state and local laws, employees also can find protection under Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act (Rehabilitation Act), the Equal Pay Act (EPA), and Title II of the Genetic Information Nondiscrimination Act (GINA).

 

*Note: While this article focuses on the employment relationship, retaliation is prohibited against job applicants and volunteers. 

Related Links:

The EEOC Enforcement Guidance on Retaliation and Related Issues:  https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm

Questions and Answers:  Enforcement Guidance on Retaliation and Related Issues:
https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm

Small Business Fact Sheet: Retaliation and Related Issues:  https://www.eeoc.gov/laws/guidance/retaliation-factsheet.cfm

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