Category Archives: Reputation Risk

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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.

More About Santa-Related Risks

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Earlier this month, we reviewed how the mere mention of Santa Claus can affect business and finance. Tying his name to a stock market rally or business operation could make values jolly, or the reverse, it could have more of a Freddy Krueger effect. But even if your portfolio and productivity remain unchanged, Santa-related risks can also follow you home and even impact family life.

Anyone who needs more than a mere glimpse of Santa Claus may want to take the fun a step further and attend one of the SantaCons across the country (many of which will be held this weekend). According to SantaCon.info, the best-known repository for SantaCons, at least 397 cities in 52 countries host the events, and some cities have more than one. Whether you want to appear in costume or take your family, dressed in their red, green and white seasonal sweaters, the site has some tips to help you avoid getting jilted out of holiday cheer. The site warns that while SantaCons are typically free, some are ticketed events to help organizers cover excess costs, and many of the Santa-themed events are commercial. Then there are the spoilers. It continues:

Again, this year, websites are popping-up making false claims and trying to sell SantaCon tickets. Please be careful not to get scammed and also consider the reputation and safety risks involved. Use this guide:

  • Most SantaCons are completely free to attend (Washington, D.C. is one of these).
  • Many SantaCons request a donation which is completely optional (San Francisco is one of these).
  • Some SantaCons request a donation which gets you some benefits (NYC is one of these).

Visit the site to review the overall criteria for entering and remaining at SantaCon for the event’s duration.

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The most important guidelines cover dress, safety, and conduct:

  1. You can dress how you like but the theme is red.
  2. Don’t make kids cry.
  3. Don’t mess with security and make people feel unsafe.
  4. Don’t get drunk or high.

(It would seem like disregarding tips 3 and 4 could directly cause #2.)

Additionally, be sure to determine if your SantaCon will be family-friendly or for adults only. Some of these events are fundraisers for charities, while others are just a prelude to a pub crawl—which does contradict the fact that Santa is generally discouraged from drunk and disorderly behavior (see guideline #4 above). Those pub crawls are often limited to the Santas in the crowd, but why shouldn’t everybody be merry?

And although you and your family will see Santa’s foot soldiers, lots of people will wonder which is the real Santa amid all the white beards and red hats.

What has become a pastime on Christmas Eve is the tracking of Santa’s location and progress.

There are several devices and agencies dedicated to keeping tabs on Santa. One of the most popular trackers is run by NORAD (North American Aerospace Defense Command).

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Its Santa Tracker began in 1955 after a newspaper ad for Sears mistakenly listed a phone number that kids could dial to reach Santa Claus; it was actually a secret line to the red phone at the Continental Air Defense Command, NORAD’s predecessor. One of the outcomes of the ad was to expose the risk of typographical errors in print publications.

Using more than one tracker on Christmas Eve, like the Google Santa Tracker, can call into question Santa’s aerodynamic abilities among children whose vocabularies might not include the word “aerodynamic.” Two trackers may simultaneously show Santa along different routes and indicate different amounts of presents delivered. So once a child is actively following Santa activities on more than one tracker, he or she may then ask: “How can he be in China on the Google tracker when NORAD says he’s in Nebraska?”

Most people actively tracking Santa do not want to comment on the technological and supply chain risks involved, accidentally bringing a “bah humbug” to the holiday. Of course, if you are seeking that information, enjoy reading one of his many risk assessments.

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.

A New Approach to Managing a ‘Classic’ Reputation

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coca cola sweetener challenge

A new Coca-Cola-sponsored contest seems to publicly acknowledge its reputational risk, but at a minimal cost that could manage or even reduce it.

In early August, the beverage giant announced its Sweetener Challenge, seeking non-employees (preferably scientists or agriculture or nutrition professionals) who can bring the company a “natural, safe, reduced, low- or no-calorie compound that generates the taste sensation of sugar when used in beverages and foods.” The winner will be announced in Fall 2018 and will receive million.

Taxes on soda, the decline of its consumption, and mounting data that sours on sugar has unquestionably affected the bottom line for the company and put pressure on the broader beverage industry. By initiating the contest, Coke seems willing to try a fresh approach to manage or favorably alter its reputation as a brand founded on sugary cola, while simultaneously attracting and retaining consumers and generating sales.

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That seems far less risky than not trying new techniques.

“[Reputation risk] is created when expectations are poorly managed and exceed capabilities, or when a company simply fails to execute,” wrote Nir Kossovsky in the 2014 Risk Management article “How To Manage Reputation Risk.” “Managing expectations is all about governance, operations and risk management—the blocking and tackling of running a business. Clearly, there can be perverse brilliance in a business strategy of setting expectations very low.

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Last year, Coca Cola suffered a net revenue decline from $11.5 to $9.7 billion, making the $1 million prize a cost-efficient gamble that, as Kossovsky suggested, can “conceptualize an ideal state and implement a roadmap to reduce reputation risk.”

Other companies have turned to their audiences for new ideas to increase awareness and improve their reputations. Folgers was jonesing for a new jingle this year and paid a songwriting duo $25,000 for a flavorful new take on “the best part of waking up.”

Even the commercial aviation industry sought out-of-this-world innovations from average stargazers. When the X Prize Foundation wanted to inspire the private sector to pursue commercial space flight, it did so with a $10 million prize. The pursuit of the Ansari X Prize generated $100 million in new technologies and was ultimately won by the Tier One project’s ShapeShipOne, which was financed by Microsoft co-founder Paul Allen.

According to Kossovsky, “reputational events are tried in the court of public opinion,” and Coke’s will both there and in stores. The company’s new sugar substitute will be announced in October 2018 and will eventually make its way into supermarkets. With just a few sips, consumers can ultimately decide if the company’s investment and reputation risk management technique was a sweet move.