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Temple University Students Winners of Risk and Insurance ‘Super Bowl’

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Pictured above, left to right, are RIMS Executive Director Mary Roth; Zakia Campbell, vice president, Spencer Educational Foundation and executive vice president, Willis NA; competition winners Cathleen Gabriel, Steven Costa and Martin Leicht; and Carolyn Snow, RIMS president and director of risk management for Humana Inc. Not pictured is winner William Thorsson. Photo by Joseph Zwielich

Four Temple University students are the new winners of the 2014 Spencer-RIMS Risk Management Challenge, a competition that began in January with 15 universities. Each team was presented with a risk management situation—a case study provided by Dan Kugler, the now retired risk manager for Snap-on Inc., and newly hired director of the Center of Risk Management-and Insurance at the University of Wisconsin Oshkosh. Each team was asked to make a presentation to “win” Snap-on’s broker business.

The teams submitted written papers prior to the Denver RIMS conference and the field was narrowed to nine schools. During the conference, the nine schools made oral presentations to a panel of 10 judges and three schools were named finalists: Temple University, Florida State University and Virginia Commonwealth University. Those finalists presented one last time in front of risk professionals at the conference.

The second-place winner of the challenge was Florida State University and the third-place team was Virginia Commonwealth University.

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 The first-place university received 00, second ,000 and third ,000.

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Kugler noted, “It was exciting to see a large contingent of colleges participating. This is like the Super Bowl for risk management and insurance! The RIMS conference was a great place for the students to demonstrate their abilities, and I only can see this competition growing. I was very pleased with how they analyzed Snap-on in a broad case study.”

Cathleen Gabriel, a senior from Temple University, a member of the winning team and one of 35 students who competed in the challenge said, “Looking back at my academic career, I never expected to compete and present on a national level.” She described working with teammates Martin Leicht, Steven Costa and William Thorsson as “an amazing experience in itself. I am very excited for each of our respective professional careers, especially after I have seen the work ethic and quality of each person.

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Two weeks shy of graduation, competing and winning the Spencer-RIMS Risk Management Challenge is a tremendous way to end a remarkable college career!” The team’s academic adviser was Michael McClosky.

Brion Callori, the newly-elected chairman of the Spencer Educational Foundation, said, “We are pleased to have provided RIMS with a grant to hold the risk management challenge. The competition showcased the knowledge, skills and abilities of tomorrow’s industry leaders and at the same time, provided the participants with a tremendous learning opportunity. The students from all 15 schools were well-prepared and insightful, and we congratulate Temple University on winning this distinguished competition.”

RIMS Executive Director Mary Roth said the Challenge is “an engaging way to showcase the brilliant minds of these future industry leaders.” In addition to providing students with a platform to show off their risk management talents, the competition “is also a reminder to established professionals at our conference about the importance of supporting the next generation of risk professionals.”

Finalists of the Spencer-RIMS Risk Management Challenge. Photo by Joseph Zwielich

Texas Fires Back at EEOC Motion

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We normally pass, on blogging about briefs filed by a party before a court ruling, but Texas’ litigation against the EEOC and U.S. Attorney General Eric Holder is not shaping up to be just an everyday lawsuit.

This is a must read for employers. It goes to the heart of what the EEOC is doing these days, and how it is carrying out its duties.

Case Background

In April 2012, the EEOC issued guidance urging businesses to avoid a blanket rule against hiring individuals with criminal convictions, reasoning that such rules could violate Title VII if they create a disparate impact on particular races or national origins. Like various other states, Texas has enacted statutes prohibiting the hiring of felons in certain job categories. In November 2013, Texas sued the EEOC, seeking to enjoin the enforcement of this guidance, which Texas has nicknamed the “Felon Hiring Rule.” In March of this year, Texas amended its complaint to include more specific allegations of injury. For example, Texas alleged that the EEOC issued a right-to-sue letter to an applicant who had been rejected by the Texas Department of Public Safety after disclosing on his application that he had been convicted of a felony (unauthorized use of a motor vehicle). Texas claimed that the job involved “access to sensitive personal information for all 26 million Texans.”

Against this backdrop is a growing firestorm of litigation initiated by the EEOC over hiring checks based on criminal backgrounds. We have blogged about those cases and rulings previously (here, here, here, here, and here).

Earlier this month, the EEOC filed a motion to dismiss Texas’ lawsuit. In its motion, the EEOC offered three primary arguments. First, the EEOC contends that the U.S. District Court lacks jurisdiction to hear the case because the EEOC’s guidance is not legally binding and does not constitute a final agency action. Second, and in part because the EEOC claims its guidance has no binding authority, the EEOC argues that Texas lacks standing to pursue its claims. As the EEOC stated, “[t]he state may disagree with the EEOC’s interpretation of the law, but that does not imbue the interpretation with any legal consequences.” Third, the EEOC said the state’s claims should be dismissed because they are not ripe.

The State Of Texas Replies

In its brief, Texas started by pointing out other cases in which the EEOC pursued administrative investigations and lawsuits against employers and invoked its 2012 guidance. Making the point that the EEOC was attempting to have its cake and eat it too, the state characterized the EEOC as arguing that the guidance is “not worth the paper it’s printed on—even though it urges other courts to defer to it.”

Having set the theme, Texas turned to its legal arguments. The state argued that whether or not the 2012 guidance was a “final agency action” was not a jurisdictional issue, as the EEOC contended it was. Nevertheless, the state explained why the 2012 guidance in fact constituted a “final agency action” under the Administrative Procedure Act. Texas argued that the EEOC’s argument, that only those rules and regulations that were entitled to Chevron deference were reviewable, improperly narrowed the term “action” in a way that “no case from any court in the history of the Nation” had adopted. Texas also pointed out that the EEOC could not prevent review under the APA simply by re-characterizing its process in order to avoid judicial scrutiny under the Act.

Turning to the standing  issue, Texas identified three types of injury it has suffered, each of which independently established Article III standing, including (i) as an employer, the State of Texas is subject to the EEOC’s “Felon Hiring Rule,” and the EEOC issuance of a right-to-sue letter to an applicant denied a job after a criminal background check demonstrates that the state has been subjected to enforcement of the rule; (ii) Texas is seeking to enforce its right to participate in the notice-and-comment provisions of the APA, and the EEOC’s failure to comply with the APA had denied Texas its right to do that; and (iii) Texas has been injured by the EEOC’s purported preemption of the State’s laws. As evidence of this final injury, Texas pointed to the EEOC’s own website, which states that the Felon Hiring Rule “says that state and local laws or regulations are preempted by Title VII” if they cause a disparate impact.

On the ripeness question, Texas argued that, despite the EEOC’s attempts to recast its 2012 guidance as not requiring “individualized assessments” of all job applications, the case remained ripe for adjudication because it presents the “purely legal question” of whether “the State of Texas can continue to follow its facially neutral blanket no-felons policies …or whether the state must abandon those facially neutral policies.”

Implications for Employers

In defending against Texas’ case, the EEOC may have compromised future efforts to enforce its “guidance” against employers in Texas and other jurisdictions. To the extent the EEOC attempts to rely upon its 2012 statements as the basis for prosecuting disparate impact cases focused on criminal background check practices, particularly in cases where the EEOC alleges that an employer willfully violated Title VII, employers need only turn to the EEOC’s representations to the U.S. District Court for fodder in their own defense. Stay tuned for the upcoming ruling in this case.

This column previously appeared on the Seyfarth Shaw blog site.

Top Female Risk Managers Offer Insight on Success with the Board and Beyond

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DENVER—Four of the top risk managers gathered today to reflect on their career paths and tips for success in the panel “Women of Distinction: Risk Managers of the Year Share Their Wisdom.”

Noted for far more than their gender, Grace Crickette, Lori Gray, Sheila Small, and Laurie Solomon have all received top accolades in the industry and were all previously been named Risk Manager of the Year. While they all reflected on the strengths and skills that women bring to the field, they did acknowledge a number of challenges faced on the road to management positions, some of which should be no surprise to any woman in business. “When I was first made an executive, I had to see a clinical psychologist,” said Grace Crickette, SVP and CRO for AAA Northern California, Nevada and Utah.

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“He told me, ‘You have some really great traits to be in business—if you were a man.  As a woman, you’re probably going to have a pretty hard time.’”

Their insight stretched far beyond questions of being a woman in the workplace, however. In particular, their advice on how to earn the respect and recognition of the board offered key tips for any risk manager, male or female. “You need to focus more on building your reputation for work with the board,” Crickette said.

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“Help educate them. I make a point to send out an article—not written by me—at least once a month that offers something valuable to learn. In doing so, you also demonstrate what you know, understand, and can engage about.”

“Few people understand our companies across the whole organization as well as we do,” said Laurie Solomon, The Coca-Cola Company’s director of risk management. “Our biggest asset is that broad knowledge of the organization, how it works, what the biggest challenges are, and where there is the greatest potential for risk or growth.” That knowledge and comfort in the material at hand breeds confidence. Knowledge, experience, and confidence combine to create credibility, and that credibility is what facilitates access to the board and progress in your program and your career, she said.

Credibility also has tremendous impact on a risk manager’s success in the public sector as well. Last year’s Risk Manager of the Year, Lori Gray of Prince William County, emphasized the human component of this. The risk assessment process, she said, offers a prime opportunity to establish credibility and strong working relationships by meeting critical players face to face.

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“Risk assessment is your opportunity to meet people in person and ask what keeps them up at night. You are developing critical relationships while getting an honest, first-hand perspective of the exposures that should be on your radar,” Gray said. “Going out and meeting department heads is critical because one of your chief jobs is to sell. You are selling yourself and selling your program.”

Gaining recognition may be one of the greatest challenges for the future of risk managers and risk management as a whole. “Part of the challenge we face as an industry is to get recognition of risk management as a pool for future CEOs and COOs,” said Crickette. “The skills and insight we have would make for fantastic officers, but people just do not think of us for those opportunities. The industry has a lot to do to promote our potential.”

Risk Management Use of Captives Favored over Tax Gains

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DENVER—Only 37% of the 664 captive insurers formed in the U.

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S. are done so for federal income tax advantages, according to a survey by Marsh. The findings suggest that captives are predominately formed for their operational and risk management value to organizations.

The report, “The Evolution of Captives: 50 Years Later” also found that onshore versus offshore single parent captives remained flat in 2013 with 56% of captives onshore and 44% located in offshore domiciles.

While it was believed that the Dodd-Frank Act would drive captives to redomicile to their home state, that has not been the case, Arthur G. Koritzinsky, managing director, captive solutions for Marsh explained during a press conference here. Only 11 out of 1,200 captives were redomiciled  in 2013, down from 16 in 2012. The only state that has responded with enforcement measures is Texas.

General liability tops the list of most popular risks in captives, with 30.8% of captives writing this line of coverage. Second is property risk—included in 29.4% of captives. The study found that more captive insurers are being used for non-traditional coverage, such as crime insurance/crime deductibles and cyber liability and 40 captives are being used for crime coverage. While captive use for this risk is growing, so far only 3.5% underwrite crime. Thirty-four captives are used for medical stop loss, 32 for trade credit and 17 for cyber liability. Third party risks, including employee benefits, customer risks and pooling arrangements, account for 18% of captives and voluntary employee benefits such as ID theft, critical illness, pet insurance, group home, group auto and group umbrella are becoming more common.

The favored structure is still single parent captives—66% of those were formed—which give companies more autonomy over claims processes and service providers. Use of special purpose vehicles increased to 9% of captives in 2013.

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The largest three domiciles — Bermuda, the Cayman Islands, and Vermont — represent 36% of all captives. There is also a trend toward emerging domiciles, as more global and U.S. domiciles are created. Of parent companies that own captives, 58% are based in the United States, 28% in Europe and 14% in Latin America, Asia and Africa, the study found.