Category Archives: Legal

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RIMS NeXt Gen Forum Offers Insights for Rising Risk Professionals

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“We’re becoming numb to the news,” said risk management veteran and author Joseph Mayo. “We’ve seen a 1,200% increase in daily record loss in the last five years. Globalization has created faster-moving and infinitely more complex risks and that’s what we have to adapt to.

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In his keynote, “Don’t Tell Me What I Know, Tell Me What I Don’t Know,” at last week’s RIMS NeXt Gen Forum 2019 for rising risk professionals, Mayo discussed environmental, social and governance (ESG) risk events and how they will continue to impact the risk management community, noting that a 1,000% increase in ESG events has occurred from 2010 to 2018 compared to each of the three prior decades. 

(Hear a preview from his RIMScast interview.)

Despite flaws in actuarial approaches and the challenges surrounding artificial intelligence such as bias and adversarial machine learning, Mayo said that the profession’s outlook is “not all doom and gloom.”

“The future of risk management is to make decisions with incomplete, inaccurate and obfuscated information,” he said. “We will have to embrace fuzzy logic because decisions need to be made quicker.

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We no longer have decades to develop actuarial models.”

Shortly afterward, Robin Joines of Sedgwick and Kristy Coleman of Turner Broadcasting System hosted risk management “Jeopardy!” While not quite as fast-paced nor as well-funded as the long-running game show, the hosts provided a forum for discussion and debate on explored topics from business travel etiquette and travel risk to communication and corporate politics. Discussing the images people project when they cross their arms, for example, while many agreed that it projects rigidity, one audience member cited a recent Wired video that reported it could also be considered a method of self-soothing rather than hostility or reservation.

Joines and Coleman were open-minded in their scoring and even led a quick tongue twister that kept the atmosphere light and fun. “Final Jeopardy” focused on public speaking, offering some practical speech delivery tips that would benefit any professional. For example, Joines said, “Talk from your knowledge base, and not from your note cards, and you’ll come across as confident.”

The forum closed with “You are Your Brand – How to Distinguish Yourself in Your Career,” presented by Kathleen Crowe, chair of the RIMS Rising Risk Professionals Advisory Group, and Steve Pottle, RIMS vice president.

Despite their differences in age and experience, the duo explained how their careers followed similar patterns. Neither presenter had begun on a risk management track, with Pottle starting out as a budding Canadian radio personality and Crowe initially expecting to work for an incumbent U.S. senator. Taking career risks brought them into risk management, and they shared lessons from their respective journeys that ultimately influenced them to be active leaders in their organizations and the industry at large.

One key tip of theirs was planning a personal goal that aligns with a long-term strategy of an organization, which can be an early indicator of a transition to a leadership role. From there, they said, you can build your personal brand regardless of your industry.

“Your personal brand lies somewhere in between how you see yourself and how others see you,” Pottle said. 

Click here for more NeXt Gen Forum coverage on the “Legal Checklist for AI Risk.” 

Click here for “Key Takeaways from RIMS NeXt Gen Forum 2019,” a special RIMScast episode produced live from the event.

Assessing the Legal Risks in AI—And Opportunities for Risk Managers

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Last year, Amazon made headlines for a developing a human resources hiring tool fueled by machine learning and artificial intelligence. Unfortunately, the tool came to light not as another groundbreaking innovation from the company, but for the notable gender bias the tool had learned from the data input and amplified in the candidates it highlighted for hiring.

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As Reuters reported, the models detected patterns from resumes of candidates from the previous decade and the resulting hiring decisions, but these decisions reflect that the tech industry is disproportionately male. The program, in turn, learned to favor male candidates.

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As AI technology draws increasing attention and its applications proliferate, businesses that create or use such technology face a wide range of complex risks, from clear-cut reputation risk to rapidly evolving regulatory risk. At last week’s RIMS NeXtGen Forum 2019, litigators Todd J. Burke and Scarlett Trazo of Gowling WLG pointed toward such ethical implications and complex evolving regulatory requirements as highlighting the key opportunities for risk management to get involved at every point in the AI field.

For example, Burke and Trazo noted that employees who will be interacting with AI will need to be trained to understand its application and outcomes. In cases where AI is being deployed improperly, failure to train the employees involved to ensure best practices are being followed in good faith could present legal exposure for the company. Risk managers with technical savvy and a long-view lens will be critical in spotting such liabilities for their employers, and potentially even helping to shape the responsible use of emerging technology.

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To help risk managers assess the risks of AI in application or help guide the process of developing and deploying AI in their enterprises, Burke and Trazo offered the following “Checklist for AI Risk”:

  • Understanding: You should understand what your organization is trying to achieve by implementing AI solutions.
  • Data Integrity and Ownership: Organizations should place an emphasis on the quality of data being used to train AI and determine the ownership of any improvements created by AI.
  • Monitoring Outcomes: You should monitor the outcomes of AI and implement control measures to avoid unintended outcomes.
  • Transparency: Algorithmic decision-making should shift from the “black box” to the “glass box.”
  • Bias and Discrimination: You should be proactive in ensuring the neutrality of outcomes to avoid bias and discrimination.
  • Ethical Review and Regulatory Compliance: You should ensure that your use of AI is in line with current and anticipated ethical and regulatory frameworks.
  • Safety and Security: You should ensure that AI is not only safe to use but also secure against cyberattacks. You should develop a contingency plan should AI malfunction or other mishaps occur.
  • Impact on the Workforce: You should determine how the implementation of AI will impact your workforce.

For more information about artificial intelligence, check out these articles from Risk Management:

The Risky ‘Business of Art’ Explored at Observer Event

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From left: Massimo Sterpi, Elena Zavelev, Anne Bracegirdle, Devin Finzer, Curt Bilby / Photo: Keith Sherman & Associates

NEW YORK—On May 21, the Observer’s inaugural “Business of Art Observed” event brought experts in art, insurance, risk management, tech and finance to the Roosevelt Hotel to discuss established and emerging risks facing the $50 billion art industry.

The “Insurance and Risk Management” session wasted no time exploring creative risk and claims management approaches to the various forms of potential damage to artwork. From transit to security to geopolitical risk, panelists agreed fine art coverage is not a paint-by-numbers process, and said the “framing of a claim” can facilitate a payment.

“Insurance companies get a bad reputation,” said Mary Pontillo, senior vice president and national fine art practice leader at DeWitt Stern. “But the higher-end, really good-quality insurance companies are looking for ways to pay claims. I think that’s where there are a lot of misconceptions.”

For example, she mentioned advising a client whose work was being kept on a yacht. While certain maritime and environmental risks such as humidity were not covered by the policy, she was able to demonstrate that ocean spray had been the source of the damage and successfully get the claim covered.

The session discussed modernizing risk management in the art market and how the industry should apply forensic due diligence to transactions and ensure they view all business activities through a lens of strategic risk. And with transparency cited as a continuous challenge, Dennis Wade, a senior partner at Wade Clark Mulcahy, LLP, who has handled international fine art matters, pointed out the importance of reputation risk when drafting a policy.

“Many policies also contain an exclusion for the dishonesty of the person to whom you deliver or entrust the goods,” Wade said. “So if you consign a work to a corrupt gallerist, there may be an exclusion in your policy and you may not be covered at all.”

The emergence of blockchain technology dominated discussion at another session, “Art Market 2.0: Using Art & Technology to Drive the Industry Forward.” According to panelists, authentication and secure transactions have risen to the top of their risk registers. New Art Academy Founder Elena Zavelev said blockchain’s ability to put individual faces on digital artwork has mostly solved the prior risk of unauthorized duplications, forgeries, and fraud. Zavelev and her co-panelists said blockchain may facilitate a long-term change in the way art is created, sold, curated and insured by improving the ability to track a work’s provenance.

Christie’s AVP Anne Bracegirdle said the masterstroke for streamlining the authentication process is to create a digital, industry-wide registry. Tokenizing original works, she said, would simplify the experience of buying, selling and trading. “If each piece had its own digital identity that would stay the same, no matter where it went, it would instantly provide secure provenance and prices,” Bracegirdle said. “There are companies like Consensus and Microsoft working to create distributed identity networks. The security within that could be applied to scale blockchain—regardless of which blockchain you’re interacting with. Digital identities would provide clients with access to all their consignments and their purchases in one consolidated space, which currently doesn’t exist.”

The evolution of art was also a hot topic during this session since what’s considered a “finished piece” is no longer just a physical canvas. Digital, virtual and even crypto-art may be in their relative infancy but these are gaining global popularity and could significantly influence the industry, said Devin Finzer, co-founder and CEO of OpenSea, a peer-to-peer marketplace for crypto collectibles, gaming items, and digital art.   

“[Owning digital products] has always been confined to a specific ecosystem, like event tickets to a ticketing site,” Finzer said. “Blockchain offers a new type of ownership for these digital assets and it’s exciting for digital art because you can own it in a variety of [digital forms]. Right now, we see the enthusiasm is from tech enthusiasts, but I think over time these ideas around digital ownership will cross over to a mainstream crowd who appreciate the art more than the technology.”

McDonald’s Sued for Sexual Harassment at Franchises

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This week, 25 women in 20 cities across the United States brought sexual harassment charges and lawsuits against fast food giant McDonald’s with the U.S. Equal Employment Opportunity Commission (EEOC), alleging that the company has neglected its duty to protect employees from harassment. In fact, the women claim, the company has often punished those who have spoken out against abuses, including cutting their hours and revoking promotion or training opportunities.

These are hardly the first claims that female workers have brought against the restaurant chain. In the past 10 years, the EEOC has filed multiple lawsuits against McDonald’s for allegations related to sexual harassment and inappropriate behavior at franchises across the country. In May 2018, 10 women filed harassment complaints, including “alleged groping, propositions for sex, indecent exposure and lewd comments by supervisors,” according to the Associated Press. They too alleged that they faced negative consequences when they objected to these abuses. Workers also launched strikes to protest against sexual harassment and other inappropriate treatment in May 2015 in Chicago and September 2018 in 10 cities.

These lawsuits correspond with a planned strike on Thursday, May 23, to protest low wages and the company’s refusal to get involved with franchises’ pay decisions and negotiations, as well as workers’ ability to create a union. The wider protest movement Fight for 15 (named for their demand for a $15 minimum wage) has backed the sexual harassment claims and lawsuits, as have the National Women’s Law Center’s Time’s Up Legal Defense Fund, the ACLU, and several law firms.

Because it operates on a franchise basis, McDonald’s has said that it has no responsibility or liability for any abuses (or wage decisions) at individual locations—that it is not a “joint employer” with its franchises, and franchise employees are not direct McDonald’s employees. In April, the Trump administration announced that it would reverse Obama-era interpretations of what qualified as a joint employer, which had made chains more liable for labor violations at their franchises. The Trump administration change is still in the proposal stage, but could clarify who can be held responsible for sexual harassment and wage disputes, relying on four factors: who can hire/fire the employee, who has control over work schedules, who sets pay rates and who maintains employment records. This change could make chain companies significantly less responsible for conduct at their franchises.

McDonald’s has stated that it provides comprehensive policies and training to help franchises prevent sexual harassment. The company also said that it has brought in experts to help “evolve” those processes, and set up an anonymous hotline to report harassment. However, advocates say that without visible enforcement of its policies, these steps are not enough. Workers at low-paying jobs, including fast food, are uniquely vulnerable to harassment and other workplace abuses. One 2016 study found that 40% of female fast food workers had been sexually harassed in the workplace, and that this was “substantially higher than in workplaces overall.” Additionally, the study found that 42% of female fast food workers who were harassed in their workplace “feel forced to accept it because they can’t afford to lose their job,” 21% said they faced negative professional consequences after reporting the inappropriate behavior, and 45% said they experienced physical and mental health problems as a result of workplace harassment.

As Risk Management has covered before, no matter what the industry, companies and their HR departments have the obligation to keep their employees safe from workplace harassment, and should implement strict HR policies to address it. These policies should include clear reporting guidelines (not just to tell an immediate supervisor, who is often the person harassing the employee) and strong disciplinary measures, as well as mandatory and regular anti-harassment training. For risk management and HR professionals reviewing their existing policies, these tips can help ensure they foster a workplace culture in which reporting harassment is encouraged and illegal or inappropriate conduct is swiftly and effectively investigated and punished.