Transcript Tangible Employment Actions include (but are not limited to):

2005 NYCOM Annual Meeting
Controlling High Risk Exposures
for Municipalities
Gideon Putnam Hotel
Saratoga Springs, NY
PRESENTERS:
Robert Bambino and Brett Carruthers
NY Municipal Insurance Reciprocal
Avis Spencer, Esq.
Congdon, Flaherty & O’Callaghan
What We’ll Cover
• Law Enforcement Liability
-- Results of NYMIR’s Law Enforcement
Assessment Project
• Employment Practices Liability
-- Exposures and Risk Control
Law Enforcement Liability
Law Enforcement Challenges:
•
•
•
•
•
Accreditation
Policies/Training
Force Issues
Pursuit
Civil Rights Violations
Accreditation
• NYS Division of Criminal Justice Services
•
•
•
•
Program
130 Standards for Assessment
Increased Professionalism
High Quality Policies and Programs
Significant Recognition
Policies and Training
• Policy Review/Update
• Use of Force – NYS Penal Code Article 35 and
Saucier v. Katz (99-1977) 533 U.S. 194
(2001) 194 F.3d 962.
• Pursuit – Jones v. United States (97-6203) 526
U.S. 227, 119 S. Ct. 1215 (1999) 116 F.3d 14
and County of Sacramento v. Lewis (96-1337)
523 US 833, 118 S. Ct. 1708 (1998).
• Domestic Violence
• Blood borne Pathogens – 29 CFR 1910.1030
Use of Force Issues
•
•
•
•
•
•
NYS DCJS Article 35 Training
Firearm Qualification
Firearm Deployment
Less Than Lethal Weapon Deployment
Use of Force Policies
Use of Force Paradigm
Pursuit
•
•
•
•
•
•
Annual Training and Policy Review
Consistency
Stop Stick Deployment
Road Blocks
Other Tactics
Pursuit Termination
Civil Rights Violations
• Treatment of Individuals
• Strip Searches
• Paul Marriott, Barbara Davis and Andy
Rivera vs. County of Montgomery, County
of Montgomery Sheriff’s Department
Law Enforcements Assessments
• 20 Agencies
• 10 Agencies Small Cities and Villages
• Loss Leaders – False Arrest; Civil
Rights Violations and Force
Findings
Claim Results
• 70% closed with no indemnity payment
made.
• 15% closed with no indemnity or expense
payment made.
• 15% closed with indemnity payment and
expense payment made.
Findings
• Strip Searches
• Recommendations for Policy Development
or Revisions made in several instances.
• Most take risk transfer approach.
Recommendations
• Expand Several Informal Information
•
•
•
•
Exchange Programs
Continued Monitoring of Loss Leaders
Monitoring and Analysis of Strip Searches
Monitoring of Lateral Hiring Practices
Risk Management for “Patrol” Officer
Program
Employment Practices Liability
NYMIR’s Loss Experience – Public
Officials’ Policy
Leading Losses by Severity – Dollars Paid
•
•
•
•
Violation of Civil Rights
Employment Discrimination
Land Use
Breach of Duty
Employment Practices Liability
Within breach of duty, violation of civil
rights and employment discrimination:
• Sex Harassment
• Other forms of illegal harassment
• Sex Discrimination
• Age/Disability Discrimination
Sources of Legal Liability
Title VII of the Civil Rights Act
(Title VII - 42 USC Sec. 2000e, et seq.)
• Employment discrimination on the basis of race,
color, religion, sex (including pregnancy) or national
origin
• Prohibition on discrimination includes a prohibition
of harassment based upon any of the above-stated
protected characteristics
• Retaliation against an individual for filing a charge
of discrimination, participating in an investigation
or opposing discriminatory practices
• Title VII’s prohibition on discrimination also
includes a prohibition on harassment based upon
any of the protected categories set forth above
Employment Actions that may Trigger
Claims under Title VII:
•
•
•
•
Failure to hire
Termination
Discipline Actions
Contract
Termination
• Demotion
• Transfers
• Application of
benefits
Other Federal Laws:
42 U.S.C. Section 1983 (Civil Rights Act of 1871)
Prohibits conduct which violates a right secured by the
Constitution of the United States, and which was
committed by a person acting under color of state law.
Other Federal Laws
Age Discrimination in Employment Act
(ADEA 29 USC Sec. 621-34)
• Involves people above 40
• Prohibits discrimination or harassment based on age
Americans with Disabilities Act (ADA)
(ADA - 42 USC Sec. 12101, et seq.)
Discrimination or harassment against a qualified
individual with a disability, or against a non-disabled
individual because of his or her association with an
individual with a disability.
Smith v. City of Jackson*
The US Supreme Court opened the door for older
workers to bring age discrimination claims against
their employers based on a theory of “disparate
impact”
• During a downsizing, make sure that it isn't
going be heavy-handed against any particular
group
*125 S.Ct. 1536 (2005)
NYS Human Rights Law
 Prohibits employment discrimination based
upon age, race, creed, color, national origin,
sex, disability genetic predisposition or
carrier status or marital status
(NYS HRL - N.Y. Exec. L. Sec. 296)
EPL Pitfalls
Number Eight:
Number Seven:
Number Six:
Number Five:
Number Four:
Number Three:
Number Two:
Number One:
Improper Resolutions
Breach of Confidentiality
Biased Investigations
Indifferent Work Environment
Not adopting EPL policies
Failure to distribute policies
Ignoring Complaints
Retaliation
Challenges for Administrators
•
•
•
•
•
Reductions in Force
First Female Employee
First Employee in
Protected Class
Collective Bargaining
Disputes
Political Disputes
•
•
•
“Problem” Employees/
Managers
Pregnancy Leaves
Untrained supervisory
personnel
EPL Risk Control
• Control Method
Action
 Include seasonal and
second/ third shift
Update and widely
distribute anti-harassment/
discrimination policies
Intake persons should be
male and female
employees - keep records
 Don’t limit to
“immediate supervisor”
Respond to all employee
complaints
 Including “confidential”
complaints
Basic Risk Control Techniques
Control Method
Action
Train first-line managers
 Especially with regard
to hiring and firing;
promotion and failure to
promote; demotion;
discipline; change in
benefits, etc. *
* Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and
Faragher v. City of Boca Raton, 118 S. Ct. 2275
Basic Risk Control Techniques
Control Method
Action
Prevent retaliation against
 Monitor work environment
complainants and others who
 Speak with parties
participate in an investigation  Respond promptly to complaints
or proceeding
ADA – Accommodating
employees with intellectual
disabilities
 Exchange non-essential job
functions
 Read or interpret application
materials
 Provide additional training time
and/or guidance
Questions?
Presentation will be on NYMIR Web Site:
www.nymir.org
Go to Risk Management Section – then
Seminar Materials and Information