by Juliane Rees | Jul 26, 2023 | Industry News
Documentation, level-headedness, focus and consistency are important aspects of a smooth firing process.
By Ben Young, Christie Vu and Gregory Boornazian
“Everyone knew that person wasn’t doing their job,” doesn’t stand up in court. What if the manager that initiated a termination is no longer with the company when a discrimination claim is made and there’s scarce documentation?
If it wasn’t documented, did it even happen?
Best intentions count for very little when there isn’t any proof to back up an employment termination decision. It doesn’t matter the size of the organization or the number of people who can provide testimony. There is ample room for dispute when it’s all hearsay. Even in today’s digital world, where an employee can be captured on screen being rude to customers, a company would struggle to justify such a termination without the proper misconduct documentation.
Trying to gather documentation after the fact is one of the hardest ways to defend a discrimination charge. If the documentation does not exist, it cannot retroactively be created.
Here are four best practices for employers to build a consistent firing process:
- Always submit something. Ideally, there is a designated form for firing managers to fill out. In circumstances where this form is unavailable or time does not permit, the firing manager should send a timestamped email or text message to the HR department to be included in the personnel files. In this case, function is more important than form, but ideally, employers should establish systems that support by-the-book employment practices.
- Cool down before documenting. Emotions should not play a role in the firing process. A clear head and cool temperament are preferred when documenting an employment incident, because plaintiffs’ attorneys can spin emotion into proof of bias.
- Focus on the specific performance issue. This is why written communication of the job expectations during the hiring process is so important. There should be no room for surprises. If an employee continues to not meet performance expectations, there is cause for termination. However, if either the expectations or the performance issues go undocumented, there is an open door to dispute the dismissal.
- Be consistent in the review process. If one employee receives more leniency, it could appear as favoritism and unfair employment practices. A good rule of thumb is that there is no such thing as overcommunication. The review process should tell a consistent story about the individual employee as well as the importance of employee performance across the organization. “They weren’t a good fit,” is not a legally appropriate cause for termination.
By following these four best practices, employers can ensure the firing process is a smooth and streamlined event. They will also be better protected against wrongful termination claims.
For more insight on today’s changing employment landscape, check out our eBook: Navigating the Complicated World of Hiring, Firing, & Retaining in 2023
This information is intended for informational purposes only. Protector Plans Executive Liability is not liable for any loss or damage arising out of or in connection with the use of this information.
by Juliane Rees | Jul 20, 2023 | Industry News, Press Release
Wedding Protector Plan® has launched new travel protection coverage for honeymoons and destination weddings. The plan is now available through its partner, Travel Insured International (TII) – a leading travel insurance provider and a Crum & Forster Company.
Couples looking to help protect their honeymoon travel plans, and guests traveling to destination weddings now have a robust travel protection solution. The plan has a wide range of benefits including optional Cancel for Any Reason coverage which provides covered travelers reimbursement of up to 75 percent of their insured trip cost for cancelations.
The plan’s Travel Assistance non-insurance feature includes medical or legal referral, hospital admission guarantee, lost baggage retrieval, emergency cash advance, prescription drug/eyeglass replacement, and more. In addition, Identity Theft Resolution Services help restore an insured’s identity in case of identity theft during covered travel.
“With worldwide travel on the rise, couples are again planning honeymoons around the globe. Since honeymoon travel coverage is limited under wedding insurance policies, we believed additional options were needed to allow couples to more fully insure their travel plans,” states Meagan Phillips, vice president, program leader of Wedding Protector Plan®.
Travel Insured International has offered quality worldwide travel protection and an array of travel protection benefits for nearly three decades. Partnering with hundreds of travel agencies large and small, TII helps them to offer their travelers extensive travel protection plans, including Wedding Protector Plan’s® honeymoon and wedding destination coverage.
“Unexpected events can occur during a honeymoon or destination wedding, which is why the Worldwide Trip Protector Plan not only provides robust coverage for travelers, but also includes 24/7 non-insurance assistance services worldwide,” DeAnne Petritz, AVP, Account Management & Trade Relations at Travel Insured International. “With the Worldwide Trip Protector Plan, travelers can go away knowing that they have coverage and support when they need it most.”
Hotlines have been established in cases of an emergency for travelers covered under the Wedding Protector Plan. They can call toll-free 800-494-9907 (from the US) or call collect at 603-328-1707 (from all other locations) for assistance.
Worldwide Trip Protector Plan coverage is available to citizens or residents of the United States who have booked and paid for their trip. For more information on the Wedding Protector Plan®, visit https://www.protectmywedding.com/travel-protection/. To get a quote from Travel Insured International, call 1-855-752-8303 to speak with a licensed agent or get a quote online.
About Wedding Protector Plan®
Wedding Protector Plan® provides cancellation/postponement wedding insurance coverage for many problems, such as severe weather causing wedding cancellation or postponement, transportation shutdowns, lost deposits and other headaches that can ruin the anticipated celebration. Consumers also have the option to add private event liability with no deductible as an endorsement to their special event insurance policy.
Wedding Protector Plan® is a division of Protector Plans Inc., a wholly owned subsidiary of Brown & Brown, Inc.
Brown & Brown, Inc. (NYSE: BRO) is a leading insurance brokerage firm, delivering risk management solutions to individuals and businesses since 1939. With more than 14,500 teammates in 450+ locations worldwide, we are committed to providing innovative strategies to help protect what our customers value most. For more information or to find an office near you, please visit www.bbinsurance.com.
About Travel Insured International (TII)
Founded in 1994, Travel Insured International (TII) is one of the leading travel insurance providers, offering quality worldwide travel protection for over 25 years. Located in Glastonbury, Connecticut USA, the company offers an array of travel protection benefits including Emergency Assistance and Evacuation, Trip Cancellation and Trip Interruption Protection, Medical Expense Insurance, Baggage Insurance, Airline Ticket Protection, and more.
Travel Insured maintains relationships with specialty travel providers and tour operators, as well as provides 24/7 insurance assistance that allows you to travel relaxed, travel secure, and travel insured.
For further information visit: https://www.travelinsured.com/.
Press Release: Wedding Protector Plan Provides Robust Travel Protection for Honeymoons and Destination Weddings (prweb.com)
[20230626-2950280]
by Juliane Rees | Jul 19, 2023 | Industry News
Consistency, accuracy, documentation and follow-up are the essential aspects of a successful hiring event.
By Ben Young, Christie Vu and Gregory Boornazian
The foundation of a strong hiring process is consistency. Not only can it save time and make it easier to assess candidates, it can facilitate fair hiring and support the organization against any future job qualification or expectation disputes.
The backbone to a consistent hiring process is documentation. This includes notes on promised benefits, signing offers and any red flags with each candidate. If all communication, references and assessments are documented, employers can make sure each candidate receives the same information, is evaluated on the same criteria, and understands the expectations of the role.
Here are four best practices to building a consistent and well-documented hiring process:
- Start with an accurate job description.
If the job requires the worker to lift 100 pounds but it wasn’t listed in the job description, the employer may not be able to lawfully fire them once hired for not meeting that expectation. On the other hand, it is possible to disqualify an applicant who does not meet a qualification that is stated in the job description, as long as the employer can justify that requirement.
- Stay neutral in documentation and reporting.
Hiring decisions cannot be based on emotions because personal opinions are risky for employment practice liability. When documenting an applicant’s experience and interview performance, it is important to stick to the facts. Note both the positive and negative aspects of each candidate in relation to the job qualifications.
- Formalize the offer process.
A great way to do this is with a hiring letter that records the terms of employment. This letter should be consistent across positions within the office, including the same data points such as pay, sign-on bonuses, benefits, performance review schedule, and all other key terms decided upon hiring.
- Follow up with each applicant.
It’s a good practice to reach out to each applicant, even to notify them that they were not chosen to move forward in the process so they’re not left waiting and wondering. Stay generic and consistent. There is no need to explain the reasons why they did not qualify.
By following these four best practices, employers can ensure their hiring process is a smooth and streamlined event.
For more insight on today’s changing employment landscape, check out our eBook: Navigating the Complicated World of Hiring, Firing, & Retaining in 2023.
This information is intended for informational purposes only. Protector Plans Executive Liability is not liable for any loss or damage arising out of or in connection with the use of this information.
by Juliane Rees | Jul 7, 2023 | Industry News
The Corporate Transparency Act affects certain tax-exempt entities and private businesses by introducing a new layer of reporting and compliance requirements. Take time to understand what the law requires and how to get your business ready for this significant change that’s coming soon.
By Ben Young, Greg Boornazian, Christie Vu and Jonathan B. Wilson
The United States is making strides expanding anti-money laundering laws that will bring our practices up to par with European countries.
The Corporate Transparency Act (CTA), a bipartisan law that was passed by Congress in 2020 and will become effective January 1, 2024, requires U.S. companies to disclose specific identifying information about each of their beneficial owners to the Financial Crimes Enforcement Network (FinCEN), a bureau of the U.S. Treasury Department.
Businesses will have to file a beneficial owner report with FinCEN, who will then use this information to generate a non-public facing database of beneficial ownership information (BOI) to help eliminate corporate anonymity and expose potential money laundering tactics that have been hidden from view.
While complying with this new law may seem straightforward at first glance, the CTA includes several complicating factors to bear in mind. First and foremost, this is a federal law that is based on state business distinctions, which can create confusion. Other stumbling blocks include determining who exactly is the beneficial owner(s) in the business and establishing a secure and efficient way to collect and transmit the required identifying information and documentation within the timelines mandated by the law.
The CTA goes into effect in mere months, so let’s take a closer look at what’s required and the best way to get started.
Defining the nuances of the Corporate Transparency Act
The CTA is far-reaching and impacts a vast number of U.S. businesses, but it doesn’t apply to everyone and may vary from state to state. Reporting companies required to adhere to the CTA include:
- Any entity formed by filing a formation document with a Secretary of State or similar office
- Any entity formed under the laws of a foreign country and registered to do business in the U.S. by the filing of a document with a Secretary of State or similar office.
Some entities that are subject to the law are exempted from its filing obligations. There are 23 categories of exemption, including:
- Tax-exempt entities under Section 501(c) of the Internal Revenue Code (IRC). [Note: This does not include tax-exempt entities under other sections of the IRC, such as homeowner associations, which are exempt under IRC Section 528.];
- Publicly traded businesses;
- Banks and credit unions;
- Bank holding companies; and
- Large operating companies with more than $5 million in annual gross receipts (as demonstrated on their most recent tax return) and more than 20 full time employees.
FinCEN estimates that approximately 32 million companies will need to file in the first year the CTA takes effect. Thereafter, FinCEN estimates that there will be about 5 million new reporting companies added each year.1
Identifying Beneficial Owners
Once you’ve determined that your business must comply with the CTA, you need to identify who are the beneficial owners and gather required information and documentation. Beneficial owners are defined by FinCEN as any individual who either “exercises substantial control over the reporting company or owns or controls at least 25% of the ownership interests of the reporting company.”2
Any existing companies established before January 1, 2024 will have one year to file their first report. New companies established on or after January 1, 2024 will have to file their first report within 30 days of formation.
The following five pieces of personally identifiable information (PII) must be provided for each beneficial owner of the reporting company:
- Full legal name
- Date of birth
- Residential address
- Identification number (driver’s license, passport, etc.)
- An image of the photo ID provided
All companies will be required to file an amendment within 30 days after any beneficial owner data changes.
In addition, companies formed on or after January 1, 2024 will also need to provide these same five pieces of PII with respect to their “company applicant.” The term “company applicant” is defined as the individual who files the company’s formation (or registration) documents with the Secretary of State, or who directs the filing of those documents.
What do business owners and operators need to do?
CTA compliance introduces significant new obligations for impacted businesses across the country, so it’s important to look ahead and prepare for what’s to come.
Here are three steps to get started:
1. Appoint a compliance officer and adopt a compliance policy.
The officer should report to the board, advise on progress and be responsible for ensuring reporting is done completely and on time.
2. Amend your internal corporate governance documents.
Formalize corporate governance documents, such as LLC operating agreements and shareholder agreements, to include requirements for shareholders to report and collect data in compliance with the law. The documents should also require the shareholder to represent and warrant the reported data and indemnify the organization in the event a third-party claim arises from the data provided. Counsel should review these documents to ensure your organization is protected in the event a shareholder fails to report or provides inaccurate data.
3. Engage with your attorney to determine who are your “beneficial owners.”
Beneficial owners cannot merely be identified as those who hold your stock. If your company is taxed as a partnership, for example, determining the beneficial owners can become complicated. Don’t delay here — start the process now so you aren’t left scrambling in a few months.
A note on mergers and acquisitions: Don’t assume companies you’re acquiring are compliant with the CTA. Make adding CTA beneficial owner updates to your M&A due diligence checklist a high priority, as all updates will need to be made within 30 calendar days of transaction closing.
For a more detailed look at how to prepare, check out Jonathan Wilson’s The Corporate Transparency Act Compliance Guide,3 to be published this summer. This in-depth guide offers a complete overview of the CTA and offers examples, checklists and model forms to help companies develop compliance policies and governance provisions.
CTA enforcement and penalties
FinCEN has not yet published details about how they intend to enforce the CTA, but it’s almost certain that those who do not comply will incur civil money penalties. Even companies that make filing errors — regardless of company size or number of beneficial owners — will be fined. Organizations that file past the deadline are liable to pay a fine of $500 per day with a maximum penalty of up to $10,000. Criminal liability charges will be imposed on senior officers or those who knowingly provide false information which can result in imprisonment for not more than 2 years.
FinCEN Reporting System
It’s imperative that companies establish a secure, efficient way to manage beneficial owner data, as solutions such as email, Google Docs and Excel spreadsheets fall short of doing this effectively. They lack proper security, transparency among owners and those managing the data, and do not provide an accessible way to collect and update data as needed.
FinCEN Report Company’s FinCEN Reporting System has been purpose-built for CTA compliance and will soon offer an easy and secure way for companies to collect, prepare and file beneficial owner data and reports. The FinCEN Reporting System also simplifies reporting data of beneficial owners who own multiple reporting companies. Check out these quick videos to see how to create your free personal account or company account to get started. For more information on how the FinCEN Report Company can help you prepare for the CTA reporting requirements, you can contact them at [email protected] or visit their website at www.fincenreport.com.
Protector Plans would like to give special thanks to Jonathan Wilson, Co-Founder of FinCEN Report Company, for his time in speaking to us about the CTA, its impacts, and how to prepare.
[1] Federal Register “Beneficial Ownership Information Access and Safeguards, and Use of FinCEN Identifiers for Entities,” December 16, 2022.
2 Practical Guidance Journal 2023 Second Edition “The Corporate Transparency Act and Beneficial Ownership Reporting Requirement.”
3 LexisNexis “The Corporate Transparency Act Compliance Guide, 2023 edition.”
This information is intended for informational purposes only. Protector Plans Executive Liability is not liable for any loss or damage arising out of or in connection with the use of this information.
by Juliane Rees | Jun 23, 2023 | Industry News
How documentation must guide your actions in these current employment trends.
The current state of employment can be confusing and treacherous for business owners. Many are not only working to get their businesses back to pre-pandemic operations, but are also competing with social and economic factors that have changed workforce demographics and motivations.
Over just a few years we saw the pandemic flip a decade-long low in unemployment with approximately 23 million job losses by May 2020. Soon after, enough workers quit their jobs that the world dubbed it the Great Resignation. Employment climbed its way back up amidst supply-chain issues and a 9.1% inflation peak in 2022. By the end of 2022, U.S. unemployment was at 3.67%, but many employers cut workforce numbers to brace for another potential storm in early 2023.
An employer’s greatest protection against these headwinds is their ability to maintain sound business practices when managing relationships with employees — and document them appropriately.
3 Employment Trends for 2023
What do hairstylists and doctors have in common? How about business executives and warehouse workers? These and more could all be subject to three key employment trends surfacing and posing a challenge to business owners:
- Federal Trade Commission
- Department of Labor
- Equal Employment Opportunity Commission
In the first quarter of 2023, new rules were proposed by the FTC and DOL to ban post-employment noncompete agreements as well as expand the classification of an ‘employee’ and overtime requirements, while the EEOC will increase and shift its enforcement priorities simultaneously. These actions will change the landscape of hiring, firing and retaining workers in 2023 and beyond, should they take hold.
Check out the rest of our e-book to find out what you need to know.
This information is intended for informational purposes only. Protector Plans Executive Liability is not liable for any loss or damage arising out of or in connection with the use of this information.
by Juliane Rees | May 30, 2023 | Industry News
The best preparation is early preparation, given the current state of the market. Here’s some advice on how to build your D&O program and information about executive liability.
By Greg Boornazian, Christie Vu and Ben Young
Small and medium-sized businesses may face even greater risk for financial impairment in the coming months due to the reduced availability of credit, interest rate increases and the tightening of lending guidelines. With the current state of the market, now is the best time to review your organization’s Directors & Officers (D&O) insurance with your broker to determine if your organization and executives are adequately protected in the event a financial impairment does occur. To help prepare you for coverage negotiations with your insurer, here are a few considerations that underwriters will look for when evaluating companies for D&O coverage:
4 D&O Placement Tips from the Underwriting Perspective
1. Start early.
Reviewing your D&O insurance program with your broker as early as possible before any potential bankruptcy provides you with the ability to design a program to protect your company and directors and officers in the event a bankruptcy does occur. This allows for better opportunities in the negotiation process for favorable coverage. The closer the company heads to financial impairment, the less likely an insurer will enhance any policy terms or conditions.
2. Be upfront about the organization’s challenges and strategy.
Underwriters perform an individual risk assessment on the company and look at the macro environment in general, such as market conditions, political changes, segment bubbles and court decisions. While each risk is unique, underwriters manage a book of business with many homogenous groupings. It’s likely your strategic themes will be similar to other risks they have reviewed. Specific details about your funding strategy, profitability plans, unique business model or geographic strengths in your particular segment can make a difference.
Treat your underwriters like they are potential investors in your company. Market conditions for underwriters harden and soften in cycles too so they may be understanding and open to learning how interest rate hikes, high-profile bankruptcies, pandemic-related securities cases, supply chain issues or staffing challenges may impact your company.
Be prepared to answer the following questions that underwriters may ask:
- Have there been any operational changes? Examples include: any exit from product lines or geographic areas, any downsizing, divestiture or “cash conservation” strategies being implemented, or any past management strategies resulting in an unmanageable risk burden or persistent net losses.
- Have you engaged with any third party turn around specialists?
- Has there been any one-time write-down requirements or other accounting change implementations, including a change in auditor?
3. Meet in person or virtually with underwriters
Addressing potential underwriter concerns may facilitate a smoother D&O placement when conditions are at risk of deteriorating. Relationships matter and with new capacity in the market there are several experienced underwriting teams interested in getting to know more about your risk and reestablishing or forging new relationships with your executive teams. Underwriters who spend time with management to understand the cycles of a given business or strategies to combat threats to profitability may be more agreeable to offer capacity.
4. Elevate the discussion
Include your own experts in the discussion. Chief financial officers, risk managers and general counsel are well suited to best connect with underwriters and add color to the conversation on the spot.
Underwriters prepare for these meetings and will want to engage at a meaningful level to help differentiate your risk from others based on more detail than can be gleaned from an application. By sharing the most recent audited financial statements with notes ahead of time, an underwriter will be able to drill down on certain facets of your company such as details regarding loan covenant defaults and waivers, cash burn coverage capability for the next 12-18 months, accounts receivable / accounts payable imbalances, long-term debt payment obligations, EBITDA and net income trends, and net loss explanations including reasons such as depreciation versus interest expense.
Also, prepare interim and pro forma information to support management’s thesis. These are critical underwriting details that create a more complete financial picture of the company.
These are just a few examples of what underwriters are looking to understand when evaluating the financial health of the company but addressing them directly may be conducive to better terms overall. For more advice on how to build your D&O program and to learn more about executive liability, B&B Protector Plans. For more information on what your D&O policy should include ahead of bankruptcy, read Part I of this series.
This information is intended for informational purposes only. Protector Plans Executive Liability is not liable for any loss or damage arising out of or in connection with the use of this information.
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