Category Archives: Regulatory Risk

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New Bill Would Toughen Calif. Dam Inspections

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DWR Photo: Lake Oroville on Jan. 19, 2018 with lake levels at 707 feet.

A year after the spillway collapse at the Oroville Dam, leading to evacuations of almost 200,000 residents and a beat-the-clock patching job to avoid a break in the tallest dam in the United States, new legislation to strengthen inspections of dams awaits approval of California Gov. Jerry Brown.

The bill would require annual inspections for high hazard dams, raise inspection standards and require consultation with independent experts every 10 years, according to ABC News.

As reported by Risk Management Magazine, problems at the Oroville Dam began when the dam’s main sluice was damaged after a winter season of record rain and snowfall, following five years of drought. Torrential rainfall caused water levels to rise so quickly that large amounts needed to be released to prevent the dam from rupturing and sending a wall of water to the communities below.

A recent report of the root-cause of the spillway failure by the Independent Forensic Team (IFC), which includes members of the Association of State Dam Safety Officials and the United States Society of Dams, notes that:

There was no single root cause of the Oroville Dam spillway incident, nor was there a simple chain of events that led to the failure of the service spillway chute slab, the subsequent overtopping of the emergency spillway crest structure, and the necessity of the evacuation order. Rather, the incident was caused by a complex interaction of relatively common physical, human, organizational, and industry factors, starting with the design of the project and continuing until the incident. The physical factors can be placed into two general categories:

  • Inherent vulnerabilities in the spillway designs and as-constructed conditions, and subsequent chute slab deterioration

  • Poor spillway foundation conditions in some locations

The IFC report concludes that all dam owners in the state need to “reassess current procedures” in light of its findings.

According to the IFC:

“The fact that this incident happened to the owner of the tallest dam in the United States, under regulation of a federal agency, with repeated evaluation by reputable outside consultants, in a state with the leading dam safety regulatory program, is a wake-up call for everyone involved in dam safety. Challenging current assumptions on what constitutes ‘best practice’ in our industry is overdue.”

Initial response to the spillway failure included erosion mitigation for both spillways during the incident, sediment removal and installation of temporary transmission lines at a cost of $160 million, According to the DWR. Phase-two includes removal of the original 730 feet of the upper chute, replacing it with structural concrete.

Preparing C-Level Employees to Address Risk

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As risks associated with technology and cybersecurity have increased in the last decade, it is more imperative than ever that corporations undertake the proper protocols to protect themselves.

When it comes to implementing risk management processes, many assume C-level executives head up these efforts, involving key departments throughout their organizations. According to a recent study conducted by NC State’s Poole College of Management, however, 80% of organizations surveyed from all over the world have no formal risk training for executives.
A quick look at recent headlines shows how quickly a cybersecurity incident can damage a corporate brand. Many companies that have recently experienced data breaches also have been exposed by the media because of ineffective or nonexistent integrated risk management strategies. This can be for a variety of reasons, from executives trying to hide the breach to the belief that they can resolve the issue before it grows into something larger or, possibly the worst of the options, they are not aware that the breach is even occurring.

So how do we make risk a priority for executives?

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In my opinion, it comes down to properly re-framing the mindset of executives around risk through effective education and training.

Educate executives on risk types
When it comes to business, the term “risk” generally produces negative connotations, causing many to avoid addressing the phrase—and the issues—altogether. From workplace injuries, data breaches and even social media nightmares, risks tend to mean trouble for executive teams. The reality, however, is that not all risk is bad. Thus, executive teams must be able to distinguish good risk from bad risk.

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What constitutes good risk? Simply put; proactive risk choices that benefit the company. These can include exploring emerging markets and growth opportunities, expanding operations into new product areas and even partnering with new vendors. While these risks can produce negative results, given that they are actively pursued by leadership teams shows that they are intended to better the company and its employees.

Executive teams need to understand the differences in positive and negative risks and their larger impact to their organizations. Specifically, understanding multiple risk types exist can change the approaches your management team takes to recognize and address risks, which will echo throughout your organization.

Train executives on how to address negative risks
Executives must realize negative risks are unavoidable. Because negative incidents will happen, executive teams must learn how to bring proactive approaches to managing these speedbumps in daily operations. Thus, formal training programs should be implanted to educate executives on proper risk management.

Training programs should include internal and external communications strategies, both with positive and negative risks, remediation strategies for negative risks and provide tips on how leadership teams can be risk thought leaders throughout the organization.

Remember, an executive team that places value on proper risk management planning and training will produce a similar culture, enterprise wide.

This will allow organizations to more proactively manage risks before they snowball into larger issues, ensuring long-term success.

Consider creating risk committees
Since all C-level executives are crunched for time, risk management often falls to the back burner. In many situations, I’ve found it beneficial for the C-suite to create corporate risk committees. Designed to reduce the burden on corporate executives by providing an advisory board to report on risks, corporations can benefit from dedicated professionals examining risks throughout the organization in areas including IT and operations.

These committees serve as an extension of the C-suite and can create better transparency, while providing informed insights to help leadership teams make better, more educated decisions.

Remember the importance of a top-down approach
No matter what approach you take to educate your executive team and get them more involved in risk management, corporations must remember enterprise risk management requires working from the top down. As risk professionals, we must do our best to gain leadership buy-in and conduct enterprise-wide training to stay ahead of risk. If NC State’s study has taught us anything, it’s that we still have a lot to learn.

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Annual Data Privacy Day to Focus on Safeguarding Data

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Last year was certainly a turning point in the history of online privacy and cyber security. Between ransomware attacks, the Equifax breach and the Federal Communication Commission’s vote to repeal net neutrality regulations—just to name a few high-profile incidents in the United States—businesses and citizens have more reasons than ever to safeguard their information.

To address this important issue, the annual Data Privacy Day (DPD) will be held Jan. 28, with online and in-person events leading up to it now that celebrate individual users’ rights to privacy and aim to prevent cyber theft and risk. DPD has been led by the National Cyber Security Alliance (NCSA) in the U.S. since 2011 and “highlights our ever-more connected lives and the critical roles consumers and businesses play in protecting personal information and online privacy,” said NCSA Executive Director Michael Kaiser.

DPD was created to commemorate the 1981 signing of Convention 108 by the Council of Europe and is observed by more than 47 countries. It was the first legally binding international treaty dealing with privacy and data protection and officially recognized privacy as a human right. NCSA also co-hosts National Cybersecurity Awareness Month and the Department of Homeland Security’s Stop.Think.Connect. campaign, which aims to increase the public’s understanding of cyber threats.

“Our personal information and our habits and interests fuel the next generation of technological advancement, like the Internet of Things, which will connect devices in our homes, schools and workplaces,” Kaiser said. “Consumers must learn how best to protect their information and businesses must ensure that they are transparent about the ways they handle and protect personal information.”
On Jan. 25, LinkedIn will live-stream an event from its San Francisco office exploring the theme of “Respecting Privacy, Safeguarding Data and Enabling Trust.” The broadcast will feature TED-style talks and panel discussions with experts focusing on the pressing issues that affect businesses and consumers. Additional DPD happenings include Twitter chats and networking gatherings to maintain a dialogue about the importance of privacy rights.
The relevance does not end on Jan. 29, noted Richard Purcell, DPD advisory board member and chief executive officer of Corporate Privacy Group. He has witnessed the event’s evolution and its impact on risk management and privacy professionals.

“The community of privacy professionals is not made up of private people. They want to share information,” noted Purcell, who was named Microsoft’s first corporate privacy officer in 2000. “They initiate a dialogue that the officers bring back to their companies. I have seen how it has stimulated events inside corporations and universities that were inspired by Data Privacy Day networking discussions. The professional development aspects of the day are profound.”
Newly released information from NCSA demonstrates how privacy is impacted in both personal and professional environments—from healthcare and retail to social media, home devices and parenting. Some statistics include:

  • In 2016, 2.2 billion data records were compromised and vulnerabilities were uncovered in internet of things products from leading brands.
  • 41% of Americans have been personally subjected to harassing behavior online and nearly one in five (18%) has been subjected to particularly severe forms of harassment online, such as physical threats, harassment over a sustained period, sexual harassment or stalking.
  • Nearly one-third of consumers do not know that many of the “free” online services they use are paid for via targeted advertising made possible by the tracking and collecting of their personal data.
  • About 78% of respondents to a recent survey of healthcare professionals said they have had either a malware and/or ransomware attack in the last 12 months.

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.