Category Archives: Governance, Risk & Compliance

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Proposed Bills Highlight Legal Risks of Sexual Misconduct Claims

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In the current climate of sexual harassment incidents being reported in a variety of industries across the country, organizations and their legal departments should be reviewing legislation and considering their legal risks, should they need to defend against sexual harassment or misconduct allegations.

Just this month, in fact, legislation was proposed at state and federal levels to keep employers from trying to silence accusers following mediation and settlements. The

Sen. Kirsten Gillibrand (D-N.Y.)

Huffington Post reported that the bipartisan legislation from Sen. Kirsten Gillibrand (D-N.Y.) and Rep. Cheri Bustos (D-Ill.) would ban employers from holding employees to forced arbitration clauses, which often prevent sexual misconduct survivors from speaking publicly about abuses in the workplace.

Similarly, legislation targeting nondisclosure agreements was recently introduced by state officials in New Jersey, California, New York and Pennsylvania to their respective legislatures.

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These involve standard confidentiality contracts that companies use in the event of a lawsuit so that the terms of a settlement do not become public knowledge.

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Depending on if, and with what wording, these bills are passed it will almost certainly affect companies’ and leaders’ policies and behaviors.

Linda B. Hollinshead, a partner in the employment law practice of Duane Morris told Risk Management Monitor that if confidentiality cannot be guaranteed during a settlement, there could be less mediation and arbitration and more courtroom battles as a result.

“If these bills are passed into law, I will be curious to see how employers change the way they handle these issues—because one of the things you hope to buy when you settle, is quiet,” said Hollinshead. “I would presume that if this is the direction in which things are going, employers may become increasingly more vigilant on preventing [misconduct] in the first place.”

Regarding the New Jersey legislation, advocates seem to be pleased with the bill’s introduction but do not disregard the value confidentiality can provide for a victim of sexual misconduct.

“While we are in favor of the intent of the bill, we do want to make sure survivors have the option to confidentiality,” said Patricia Teffenhart, executive director of the New Jersey Coalition Against Sexual Assault. “Many survivors might wish to engage in a nondisclosure agreement, and we need to expand the opportunity for them to have the option to pursue nondisclosure.

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According to XpertHR’s Top 15 Most Challenging HR Compliance Issues for 2018  small, medium and large employers across the country expect sexual harassment to be a top matter of urgency moving forward. The report reminds that misconduct can occur between co-workers, both in and out of the workplace:

Harassment also may involve a wide variety of conduct—physical, written or verbal, as well as conduct over the internet and social media including cyberbullying.

For more legal risks to consider, visit www.rims.org to download the new RIMS Professional Report, The Top 8 Legal Developments You Need to Know About in 2017.

Latest Amtrak Derailment Could Have Been Prevented

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An Amtrak train derailment near Tacoma, Washington on Dec. 18 that killed three passengers and injured about 100 was the result of excessive speed in a steep curve, and could have been prevented with automatic braking technology, according to experts.

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Amtrak Train No. 501, on its inaugural run, was traveling 80 miles per hour in an area limited to 30 miles per hour when it derailed on an overpass, sending the train’s 12 coaches and one of its two engines careening onto the highway below.

As previously reported in Risk Management, a similar derailment in Philadelphia on May 12, 2015 that killed eight, was also blamed on excessive speed and could have been avoided if a technology, called “positive train control” (PTC), had been in place.

PTC is designed to eliminate human error by using four components: GPS satellite data, onboard locomotive equipment, the dispatching office and wayside interface units. The system communicates with the train’s onboard computer, allowing it to audibly warn the engineer and display the train’s safe braking distance based on its speed, length, width and weight, as well as the grade and curvature of the track, according to railroad operator Metrolink. If the engineer does not respond to the warning, the onboard computer will activate the brakes and safely stop the train.

In the aftermath of a 2008 collision in Chatsworth, California, when 25 passengers were killed, Congress enacted the Rail Safety Improvement Act of 2008.

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It required each Class 1 rail carrier and each provider of regularly-scheduled intercity or commuter rail passenger service to implement a PTC system by Dec. 31, 2015. Because of the high costs—implementation is estimated to cost million for commuter trains—and complexity of the system, however, the requirement was extended three years.

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Railroads are now mandated by federal law to have a system in place by the end of 2018.

Using ERM to Protect Your Business from The Equifax Fallout

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As with many data breaches, the general conclusion of the Equifax attack is that personnel were not aware of the issue beforehand. This conclusion, however, is false.

In early September, I anticipated that a vulnerability in Equifax’s software was known ahead of time, and that this scandal was, therefore, entirely preventable. A month later, the NY Times reported that the Department of Homeland Security sent Equifax an alert about a critical vulnerability in their software. Equifax then sent out an internal email requesting its IT department to fix the software, but “an individual did not ensure communication got to the right person to manually patch the application.”

The Equifax data breach was a failure in risk management. As a credit bureau that deals with the personally identifiable information (PII) of 200 million U.S. customers, Equifax has a legal and moral responsibility to safeguard their customers’ security, and to adopt the proper systems to do so.

For instance, if Equifax had an enterprise risk management (ERM) system in place, the warning from Homeland Security would have been properly recorded and assigned out to the appropriate personnel. This system would have provided transparency over the status of the task in progress, and would have triggered reminders until the vulnerability was patched and verified by the right subject matter expert.

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A Point of No Return

It’s my opinion that this scandal is a point of no return for risk management. While data breaches have abounded in recent years, there has never been one of this magnitude or one that provides every piece of information hackers need to steal our identities. Of course, lawsuits and penalties are piling up around the company’s negligence, but these financial losses are nothing compared to the reputational damages Equifax will suffer—shares fell by 18% following the breach and have yet to fully recover.

What makes this scandal so unique, and therefore a point of no return, is that these reputational damages reach far beyond Equifax. Consumers can’t always choose whether they’re a customer of Equifax, but they can choose whether to do business with the institutions that gave away their information to Equifax in the first place.

I also believe that consumers’ outrage with this scandal will cause them to shift their money, loyalty, and trust to institutions that can demonstrate effective risk management. CEOs and boards of every company will have to prove their organizations have adequate enterprise risk management systems in place. They’ll find that more effective risk management and governance programs are necessary to keep their market shares up and their reputation clean.

Where to Go from Here

While this breach may appear to be an event of the distant past, we are in the eye of the storm. Stolen information can lie dormant for months or years as criminals wait to make their move, and when they do, you’ll have either taken this period of calm as a chance to forget the scandal, finding yourself ill-prepared, or a chance to get to higher ground, finding yourself fully protected.

To protect themselves, businesses must:

  • First, to determine where to focus your security resources, recognize that people, processes, and procedures are now the biggest risks. Businesses need to perform risk assessments across all departments to determine who has access to sensitive information and authentication processes, and what the business impact would be if these employees were to be impersonated.
  • Next, to address these risks, businesses must rewrite their procedures for authenticating the people involved in sensitive requests and actions both verbally and electronically. With so much PII now in the public domain, it is no longer safe to rely on traditional authentication based on these pieces of information.
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    For example, the security question “What was your first car?” is not effective because the answer is now easily accessible.

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    A more effective question would be “Who was your best friend in elementary school?”

  • Finally, it is important to keep your third-party vendors in mind. Vendors often have access to sensitive information and processes, which could have an enormous impact on your company. It is crucial, therefore, to extend your internal authentication procedures out to your third parties so that they are authorizing sensitive requests and actions as securely as your own organization.

Our world, including the business world, is becoming increasingly transparent, meaning it’s up to you to act with integrity and protect your stakeholders. Keeping the Equifax data breach in mind, along with enacting these tactical steps, will help you stay ahead of the competition and out of glaring social media headlines.

Insurance Industry Responds to House Approval of NFIP Renewal

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Insurance industry trade groups lauded the U.S. House of Representatives’ vote on Nov.

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14, reauthorizing the National Flood Insurance Program (NFIP). The 21st Century Flood Reform Act (H.R. 2874) would reauthorize the program for five years and enact operational changes.

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Advocates from RIMS, the risk management society, the Property Casualty Insurers Association of America, and SmarterSafer.org also asked that the Senate waste no time in passing its version of the measure before its expiration on Dec. 8.

On Sept. 8, President Trump signed legislation passed by both houses to extend NFIP authorization until Dec. 8, which previously had been set to expire Sept. 30.

Dow Jones reports that the act’s reforms include:

  • Authorizing $1 billion to elevate, buy out or mitigate high-risk properties
  • Capping flood insurance premiums at $10,000 per year for homeowners
  • Removing hurdles to the private flood insurance market, which often offers better coverage at lower cost than the NFIP
  • Providing for community flood maps and a homeowner’s ability to appeal their flood designation
  • Better aligning NFIP rates to match a property’s true risk, particularly for in-land and lower-value properties
  • Improving the claims process for flood victims
  • Addressing repeatedly flooded properties, which account for 2% of NFIP policies but 25% of claim payments

While it applauded the U.S. House of Representatives for deciding to reauthorize the NFIP, RIMS, the risk management society, also urged the Senate to quickly follow-up before the program’s Dec. 8 expiration. Allowing the NFIP to expire would have “significant repercussions, impacting both corporate and residential property owners,” said RIMS Vice President Robert Cartwright Jr.

“Nearly five million American consumers rely on the NFIP to protect their homes, properties, and businesses,” said Nat Wienecke, senior vice president of federal government relations at the Property Casualty Insurers Association of America (PCI). “A long-term reauthorization is needed to provide consumers and markets with reliability and stability when it comes to flood insurance coverage.

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SmarterSafer.org, a coalition of taxpayer advocates, environmental groups, insurance interests, housing organizations and mitigation advocates, said in a statement that this year’s “historic hurricane season has pushed the nation’s debt-ridden flood insurance program past the point of bankruptcy once again, so we applaud the House for passing a legislative package that reforms the NFIP to ensure the program is financially sustainable for the future.” The organization also lauded the House for investing in recommended measures including “mapping and mitigation, addressing affordability and providing consumer choice in the flood insurance marketplace.”

The NFIP was created more than 50 years ago to provide affordable flood insurance as private insurers pulled out of the market. The program’s large debt led Congress to cancel $16 billion of its debt last month. NFIP now has about $6 billion to pay claims and $10 billion left that it can borrow from the Treasury Department, according to the Federal Emergency Management Agency, which manages the program.