Bill Attacking PEOs in FL House Commerce Committee Not Being Heard This Week

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I am happy to understand from our friends at the Florida Association of Professional Employer Organizations (“FAPEO”) that Florida House Bill 1305 will not be heard by The House Commerce Committee Agenda for their Tuesday, April 6’th meeting. The House Commerce Committee agenda can be found here – https://www.myfloridahouse.gov/Sections/Committees/committeesdetail.aspx?CommitteeId=3098

…along with all of the members of this committee.

While FAPEO and NAPEO will continue working with members of committee to help them understand this is a bad bill, it cannot be stressed enough how much your grass roots efforts has slowed down the momentum of what seemed to be a runaway freight train a few weeks back. Thanks for stepping up, but its not over yet this year never mind in the future. There has never been a gap in what a PEO covers and we need to use this opportunity to memorialize this lack of issue. It should be noted this bill can still appear on a future committee meeting agenda this year and for sure if not passed, will be teed up for another run next year at PEO. 

Thank you for all of your help with this bill and let’s not just defeat it this year, let’s bury it for good.

*** A reminder announcement from FAPEO on the bill below ***

From: Robert Skrob 
Subject: Bill Attacking PEO

HB 1305 – Workers’ Compensation Insurance for Employee Leasing Companies has been assigned to the House Commerce Committee.  At 4:30 pm this Friday we will find out if the bill will be considered at the House Commerce Committee next Tuesday.  

The time for outreach to members of the committee is NOW.   

Here’s text of the bill so you can see how damaging that language could be to the PEO Industry. 

Like the bill before, the amended bill shifts liability from construction contractors to PEOs for workers compensation fraud.  

Will you support our efforts to kill this bad bill by sending  an email to members of the House Commerce Committee? If this bill moves forward, these are the individuals who will consider this bad proposal.  It’s important to start our outreach now.  

If you know any of these Representatives personally, please let me know.  

Here are some talking points to select from and adapt for this communication:  

  • An employee leasing company covers 100 percent of their employees with workers compensation coverage.
  • What bill proponents call a “gap in coverage” is simply workers compensation fraud in construction (paying under the table) and has been persistent in Florida in the traditional business model as well with subcontractors utilizing an employee leasing company arrangement.
  • Rather than work to address the underlying problem of workers comp fraud, the bill only shifts liability from general contractors to employee leasing companies for workers comp fraud.
  • This bill would only increase workers compensation fraud in construction in Florida.
  • It financially encourages general contractors to turn a blind eye to both the price of a subcontractors work and checking workers for employees of subcontractors who are on their jobsite for without  required workers compensation coverage. 

Here are the individuals to contact: 

Representative Webster Barnaby (Orange City)  Webster.Barnaby@myfloridahouse.gov

Representative Dan Daley (Sunrise) Dan.Daley@myfloridahouse.gov

Representative Brad Drake (DeFuniak Springs) rad.drake@myfloridahouse.gov

Representative Joe Geller (Dania Beach) joseph.geller@myfloridahouse.gov

Representative Chris Latvala (Clearwater) Chris.Latvala@myfloridahouse.gov

Representative Randy Maggard (Zephyrhills) randy.maggard@myfloridahouse.gov

Representative Lawrence McClure (Plant City) Lawrence.McClure@myfloridahouse.gov

Representative Angela ‘Angie’ Nixon (Jacksonville) Angie.Nixon@myfloridahouse.gov

Representative Anika Tene Omphroy (Sunrise) Anika.Omphroy@myfloridahouse.gov

Representative Scott Plakon (Longwood) Scott.Plakon@myfloridahouse.gov

Representative Rene Plasencia (Titusville) Rene.Plasencia@myfloridahouse.gov

Representative Anthony Rodriguez (Miami) Anthony.Rodriguez@myfloridahouse.gov

Representative Bob Rommel (Naples) Bob.Rommel@myfloridahouse.gov

Representative Jason Shoaf (Blountstown) jason.shoaf@myfloridahouse.gov

Representative David Silvers (West Palm Beach) David.Silvers@myfloridahouse.gov

Representative Emily Slosberg (Delray Beach) Emily.Slosberg@myfloridahouse.gov

Representative Josie Tomkow (Auburndale) Josie.Tomkow@myfloridahouse.gov

Representative Matt Willhite (Wellington)   Matt.Willhite@myfloridahouse.gov

Thank you for your help. 

To give you a bit of perspective on where this bill is in the Legislative process.  To become law this bill would have to pass House Commerce Committee before reaching the House floor, getting on the agenda and passing the House.  In addition, this bill would need to pass through three committees in the Senate and pass through the Senate floor vote with the exact same language as the House bill.  And, all of this would have to happen by April 30th

We are fighting to kill this bill every step of the way.  Your efforts are a huge help. Thank you! 

Ransom seeking hackers taking advantage of server flaws

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Content was taken from Reuters, Mr. Raphael Satter click here for original article from The Insurance Journal’s Mr. Jeff Mason click here for original article.

Since Microsoft announced a series of vulnerabilities in it’s widely used mail server software on March 2, 2021 the biggest threat has been from hacker groups holding users hostage by preventing access to their data unless large sums of money are paid. One security firm had counted 10 separate hacking groups taking advantage of the flaws – with ransomware targeting being the most serious of the threats.

On Sunday, The White House urged computer network operators to “take further steps to gauge whether their systems were targeted?” Despite a recent software patch concerns over remaining vulnerabilities continued to loom. The remedy still leaves open a so-called back door that can allow access to compromised servers and perpetuating further attacks by others. The back channels for remote access can impact credit unions, town governments and small business, and have left U.S. officials scrambling to reach victims, with the FBI on Sunday urging them to contact the law enforcement agency.

CNN reported that the Biden administration was forming a task force to address the hack. The White House official, in a statement, said the administration was making “a whole of government response.” A Microsoft representative said that the company is working with the government and others to help guide them accordingly. Secondly, Microsoft has urged the impacted to install patch updates as soon as possible.

Neither the company nor the White House has specified the scale of the hack. Microsoft initially said it was limited, but the White House last week expressed concern about the potential for “a large number of victims.” So far, only a small percentage of infected networks have been compromised through the back door, the source previously told Reuters, but more attacks are expected. We will continue to monitor the situation as it develops.

NAPEO’s 2021 Virtual Risk Management Workshop March 9-10

NAPEO members we have exciting news! NAPEO’s 2021 Virtual Risk Management Workshop is just around the corner. Don’t miss this opportunity to register for this 2 day event.

NAPEO’s Risk Management Workshop has evolved into the largest gathering of PEO risk management professionals, carriers, brokers, and agents. Nowhere else will you find the PEO industry’s top risk managers, key insurance executives, regulatory experts, and policy makers gathered for such an in depth look at PEOs and workers’ compensation. 

The 2021 workshop will offer relevant, timely and valuable educational programming. Attendees will hear from risk management experts, get tips from leaders in the industry, and be able to take home ideas you can employ back in the office immediately to improve your risk management practices.

NEW for 2021 This year, NAPEO Gives Back will have a presence at the Risk Management Workshop.  NAPEO will host a concert with musical guest and NAPEO service partner Ken Jewel to close out the first night. This concert will benefit, Rocks the Cure, which was founded by Ken and is a non-profit organization that uses entertainment and music to raise money for pediatric cancer research. Rocks the Cure also helps the patients and families who have been affected by this terrible disease. $25 of each registration fee will be directly donated by NAPEO Gives Back to Rocks the Cure.  There will also be opportunities to donate directly during registration and during the event.  

Who Should Attend?

  • PEO risk managers
  • PEO owners
  • PEO senior managers with risk management responsibility
  • Insurance and risk management service providers to the PEO industry

Don’t miss this great event. Click on the below link to register.

https://www.napeo.org/events/events-calendar/rmw

Florida Announces $8.65 Minimum Wage Rate for 2021

Editor’s Note: Currently, Florida voters are voting on if Florida should increase its minimum wage to $15 over a 6-year period. If 60% of Florida voters approve, we will update this post.

Florida has published new minimum wage posters announcing an $8.65 minimum wage rate for 2021. Florida’s minimum wage rate is adjusted annually to reflect changes in the cost of living.

The new rate becomes effective Jan. 1, 2021. Employers should be mindful of local laws, ordinances and any rule or regulation that may increase an employee’s minimum wage rate.

Tipped Employees

Florida allows employers to pay their tipped employees a minimum wage rate of at least $5.63 per hour.

A tipped employee is an employee who engages in an occupation where he or she customarily and regularly receives more than $30 per month in tips.  Employers are required to subsidize a tipped employee’s minimum wage rate if the employee’s tips and gratuities are insufficient to allow the employee to receive wages that are at least equal to the state’s minimum wage rate.

Posting Requirement

Employers must display the 2021 minimum wage poster in a location where employees can easily see it. The Florida 2021 minimum wage poster is available in English, Spanish and Creole.

Next Steps for Employers

Florida employers should review and adjust their payroll systems to make sure nonexempt employees receive wages that are at least equal to the state’s minimum wage rate.

If you have any questions regarding your required posting notices, please reach out to Libertate Insurance Services at 888-501-0014.

Layoff Considerations and How to Prepare for Potential Claims

Layoffs are an unfortunate reality for many businesses. Whether a layoff is planned or unplanned, a business can suffer major reputational harm or even be taken to court following a large-scale termination.

In fact, it’s not unheard of for layoffs (and even just the threat of layoffs) to increase workers’ compensation claims, particularly in a tight job market. This is because individuals faced with a loss of income, temporary unemployment benefits and the likelihood of unaffordable health insurance may look to workers’ compensation as a way to sustain their income.

Although employers must never attempt to stop any individual from filing a workers’ compensation claim (legitimate or otherwise), there are steps you can take to help minimize your business’s liability for future claims.

Communicate With Your Insurance Carrier and Legal Professionals First and foremost, it’s crucial that you let your insurance carrier know about any downsizing plans. This is because your carrier can provide tips for dealing with any workers’ compensation claims that may follow the downsizing.

Working closely with a legal professional can also help you understand the relevant workers’ compensation laws in your jurisdiction.

If a claim does arise, you should immediately report any suspicions you have about the claim —along with all the reasons for your suspicions—to both your workers’ compensation carrier and legal professionals. The earlier you voice concerns, the more opportunities you’ll have to investigate the claim, gather medical evidence and discuss defense strategies.

Have Strong Reporting and Investigation Procedures in Place

Workers’ compensation claims are not often decided by a singular bit of information or evidence. Rather, employers must cover multiple angles in order to defend against questionable claims effectively.

For instance, employers could provide documentation of anecdotal evidence (e.g., no one saw the individual get hurt). Objective evidence (e.g., an independent medical exam’s X-ray or MRI) is also important for a strong defense. To help gather this kind of evidence and stay ahead of potential claims, accident reporting and investigation is crucial.

Regularly revisit your accident reporting policies, and require all employees to report accidents immediately, no matter how minor. Following a reported incident, you should investigate immediately. Consider separating witnesses from each other in order to get an accurate picture of what happened. Document these incidents and investigations thoroughly, and secure witness statements and signatures whenever possible.

Finally, as part of an employee’s exit interview, you should consider having the employee sign a form stating whether he or she has been involved in any unreported accidents or hazardous exposures while on the job. This can help you defend against unexpected claims that arise after a layoff.

Maintain Strong Recordkeeping Practices

When it comes to combating questionable future claims, accurate recordkeeping can make all the difference. Above all, employers need to know where employee records are kept and should secure photocopies of them as backups. Employers should also:

  • Assign a trustworthy employee to oversee employee records. This individual should be able to provide and explain these records in court.
  • Maintain a photographic or video record of your premises. This can help illustrate the conditions of your building and workspaces in the event of a claim.
  • Consider using and keeping records of termination interviews in order to help determine the risk of any future workers’ compensation claims. You may also want to consider performing termination physicals, as these can be useful in case an employee files a claim after being laid off. Specifically, these physicals can help establish an employee’s health and fitness at the time their employment ended.

Finally, employers should ensure employee records are not destroyed, since payroll, schedules and accident reports may become vital evidence.

Invest in Employee Assistance Programs

Terminations can put employees in an antagonistic frame of mind, which can lead them to bring questionable claims that they wouldn’t make otherwise. However, this risk may be reduced if an employer demonstrates that it cares about an employee’s well-being during an exit interview.

To accomplish this, many employers provide resume counseling, therapy and other services that demonstrate concern for a former employee’s welfare. These simple actions can ensure employees don’t take a layoff personally.

Watch for Risk Indicators

To better protect themselves, employers should be aware of certain indicators that they may be at risk of a future claim:

  • The employee is disgruntled after being fired or laid off.
  • The employee has been told his or her employment is about to end.
  • The employee is having financial difficulties.

It should also be noted that a lack of witnesses and medical evidence can indicate that a claim is questionable. Make note of these instances, as they can come in handy in the event of a claim.

Have a Strategy in Place

While employers must never attempt to prevent an employee from making a workers’ compensation claim, the above tips can assist in avoiding and defending against questionable claims. Employee reductions can pose a significant challenge for employers and are often devastating turns of events for employees. It is important for employers to have a layoff strategy broken down into goals and an action plan for the company.

For more workers’ compensations strategies and advice, contact Libertate Insurance Services today.

The NCCI Speaks to the Impact of COVID19 on Workers’ Compensation

Following suit with the research brief from WCIRB. Click here to access.

…done last week by the Workers’ Compensation Insurance Rating Bureau of California (“WCIRB”) on the impact of COVID19 on the California Workers’ Compensation system, the National Council of Compensation Insurance (“NCCI”) came out yesterday with the same for the 38 States that it tracks for rule and rate-making purposes. Note the numbers below do not include half the country’s volume of workers’ compensation premiums when it is considered States like California (25% on its own), New York and Ohio are not included in the below data.

Key findings of the NCCI on frequency rates:

  • % of ee’s that will contract COVID 19 on the job – <10% – 81%
    • it should be noted that the issue of “Presumption of Coverage” related to different types of occupations is the driver of the huge range in frequency – all States are presuming “First Responders” (1,176,110 workers), others to include Healthcare Workers and First Responders (9,666,420 workers) and still others such as Illinois that presumes any worker that is client facing has occupational exposure to the disease (86,351,950 total workers in the 38 States considered)
  • Infection rate is 5-50% regardless of class of worker above
  • Range of Impact of CoVid losses on overall expected losses by category of worker:
    • First Responders – PreCoVid expected losses of $1.1B with potential impact of $.1B – $1.9B… 10%-170% range
    • First Responders and Healthcare Workers – Pre CoVid losses of $3B  with potential impact of $1B – $16.2B…. 33% – 550% range
    • All Workers – PreCovid losses of $32.1B with potential impact of $2.78B – $81.5B… 8 – 254% range
    • Hospitalization rate after infection range is 1 – 31%
    • Critical care rate of 5 – 27%
    • Duration of care for mild symptoms of 2 weeks and 3 – 6 for moderate or critical cases
    • Cost per claim type:
      • Mild $1,000
      • Moderate-Severe $25,500
      • Severe $59,000
    • Impact by infection and compensability rates
      • 1% occupationally impacted, cost of loss goes up 8%
      • 5% = 42%
      • 10% = 85% – which at present is NCCI’s selection
    • Fatality rate for those infected with the virus is .5% across all classes of employees – Average impact $146,980 in death benefits (does not include medical)

My summation of what the NCCI and WCIRB are projecting is as followed:

  • The huge range in expected costs is going to be understood on a State by State basis with the issue of presumption of contraction based on occupational duties being the biggest driver
  • As each State has unique payouts for disability and death, the prediction of cost and risk load for pricing needs to be State by State
  • The healthcare segment is providing the most unpredictability – add a risk load, park the business elsewhere or stay out of the segment for now – too unpredictable
  • PEO’s can be a very important partner to insurance carriers by allowing them to understand performance data fastest due to their management of payroll
  • The smartest people I know do not know what to predict but this is a start – we probably will not have enough real data to narrow this range of expectations for months

Stay safe and we will get through this – but with our eyes open.

Potential Wage and Hour Claims Due to New Overtime Rule

Woman working at desk

This article was originally published on InsuranceJournal.com.

Time is running out for employers to familiarize themselves with new federal rules on overtime pay.

Starting January 1, the threshold for who is entitled to overtime pay — and who is not — changes. It’s the first change since 2004.

The new rule raises the income threshold that employees must reach to $684 per week, or $35,568 per year, to qualify as exempt from overtime. Employers are allowed to count up to 10% (or $3,556.80 per year) in bonuses or commissions towards the threshold.

Workers making less than the threshold are entitled to earn one and one-half times their regular rate of pay for all hours over 40 during a work week.

Failure to properly implement the new regulations could expose employers to wage-and-hour type claims under the Fair Labor Standards Act (FLSA).

For some employers, that could mean employment practices liability insurance claims.

That’s one reason Chris Williams is trying to raise awareness. Williams is employment practices liability product manager for Travelers. He is responsible for employment practices underwriting strategy, including policy language, target markets, overall profitability of the book, marketing, and serving as a general resource for underwriters on employment practices.

In a recent talk with Insurance Journal, Williams discussed the overtime rule change and what it means for employers, employees and insurance.

There’s so much else going on in the area of employment practices, the overtime pay issue hasn’t gotten much attention.

“That is a concern because the law’s already fairly complicated for employers to comply with,” Williams said. “Then, anytime you have a change in a complex law, you’re likely to see one, compliance challenges, and two, potential litigation coming out of that.”

Williams said the starting point is understanding the basics of the current rule compared to the new rule that starts in January.

Under the FSLA, employees that satisfy three requirements — they are paid on a salary basis, they are paid more than $23,660 per year, and they perform certain functions considered executive, administrative, or professional duties — are currently not entitled to overtime wages.

“For example, if you’re an executive, you’re a manager in an organization, you’re managing folks, you have the ability to hire, to fire people, and you make more than $23,660 per year, you are not entitled to overtime,” he explained.

Exempt executive, administrative and professional employees include teachers and academic administrators in elementary and secondary schools, outside sales employees and employees in certain technology occupations, according to the Department of Labor. Certain casual, seasonal and farm workers are also exempt from the overtime requirement.

For the new year, while the definitions and exemptions for those doing executive, administrative, professional and other work remain, the key change for employers to be aware of is that the salary threshold is going up from $23,660 to $35,568 per year.

“As a result of that, you’re going to have folks that are now within that pay band that are going to be entitled to overtime that previously weren’t entitled to overtime,” Williams said.

“Employers are going to have to one, figure out who those individuals are. And two, they’re going to have to make sure they’re tracking their time, and if those folks are working more than 40 hours per week, they’re going to have to make sure that they’re compensated on a time-and-a-half basis for that time in excess of 40 hours per week.”

While $35,568 is the threshold and where the primary impact is felt, there is also an upper limit as well. The high threshold under what is called the highly-compensated employee rule is going from $100,000 to $107,432.

“In other words, if you make more than $107,000, you have some administrative or executive functions within the organization, and you’re doing non-manual work, you’re not going to be entitled to overtime,” he explained.

The upper limit rarely is an issue. “We don’t see very much claim activity arising out of those individuals. It’s much more on the lower spectrum,” Williams noted.

In addition to the federal rule, depending on the state they are in, employers may have state laws on overtime pay they must follow as well. California is one such state.

“Employers in those situations are obligated to comply with both the state and the federal law. For example, in California, most of our overtime wage claims that we see pertain to state law as opposed to claims under the Fair Labor Standards Act,” he said.

Williams sees a few potential trouble spots for employers.

“One of the things we see today is employers, and I don’t think a lot if it is malicious, I just think it’s a misunderstanding of what their obligations are, but they may not pay their employees overtime.

“They may not correctly classify individuals as exempt or not exempt, meaning they’re entitled to overtime. They may not track their time correctly.”

Another area is claims for not compensating workers for time they spend putting on their gear to prepare for work. “If you work in a meat processing plant or something like that, you have to put on protective gear, and then you weren’t compensated for that time,” he said.

There are things employers should do to prepare for the new overtime situation, according to Williams.

“Employers will want to go back and make sure that they’ve correctly identified who is now entitled to overtime and are they, in fact, tracking their time and making sure those individuals are compensated correctly.

“It’s probably a good idea, given this change in the law, to review all your employees and make sure that you classify them correctly and you’re tracking their time properly and that you’re compensating them appropriately.”

Williams also noted that some employers may decide to raise the salary of their workers above the threshold of $35,568 to avoid an overtime issue. However, in order to avoid paying overtime for those workers, the employer would need to make sure the worker also qualified for an exemption under professional, administrative or executive.

“In other words, if the employer raised the salary of a worker above $35,568 per year, and the worker did not qualify for one of the exemptions, the worker would still be entitled to overtime,” he said.

Williams recalled that happened in some cases after the Obama Administration in 2016 initiated an even high threshold of $47,000. Some employers increased the pay of some of the workers beyond that threshold. But then the Obama change was struck down in court in September 2017 when a judge ruled that the ceiling was set too high and might apply to some management workers who are supposed to be exempt from overtime pay protections. Business groups and 21 Republican-led states had sued to challenge the 2016 rule.

The Department of Labor estimates that 1.2 million additional workers will be entitled to overtime pay as a result of the increase to the standard salary level, while an additional 101,800 workers will be entitled to overtime pay as a result of the increase under the highly-compensated employee rule.

Williams urges agents to advise their clients to take advantage of resources available to them to be sure they are in compliance— whether that be a human resources department, payroll processor or general counsel. He also recommends the DOL’s website that has information about the final rule.

Williams added that a number of insurance carriers including Travelers also have resources available. “It’s sort of a matter, one, of employers educating themselves, and then, two, taking action on that information,” he said.

Wage-and-Hour Claims

Those caught not in compliance could face wage-and-hour claims. Defense costs only for such claims may be covered under employment practices liability insurance (EPLI) but only for those purchasing a separate endorsement under their EPLI. It’s not part of the traditional EPLI. (Coverage of unpaid wages may be available to large firms with sizable self-retentions but this coverage is not typically available to small and medium firms.)

“A lot of carriers, including Travelers, will provide a sublimit that applies to defense expenses only for wage-and-hour claims. That generally includes issues like failure to pay overtime, misclassifying workers as exempt, potentially misclassifying workers as independent contractors when they’re in fact employees,” Williams explained.

There are certain state statutes, like in California, where employers are obligated to provide rest and meal periods. The separate coverage would include defense expenses for those types of claims as well.

Travelers offers a sublimit up to $250,000. “I think the market’s generally between $100,000 and $250,000, and there may be some outliers beyond that,” he said.

Since it’s been 15 years since the overtime rule was changed, this is in a way a new exposure, one agents may want to explore with clients.

“I think that’s a good idea. We sell this coverage to privately held companies and nonprofits, and we try to be proactive in selling it because it’s an exposure for employers that’s out there,” Williams said.

He noted that these claims are attractive to the plaintiffs’ bar because there is a fee shifting provision in the statute so that if the plaintiff prevails on the claim, they’re entitled to their attorneys’ fees. “You can have cases where the actual recovery amount may not be that significant in terms of the unpaid wages, but the attorney fee is potentially significantly more than that unpaid wage portion,” he said.

Other EPLI Issues

Overtime is hardly the only pressure on employment practices liability insurance (EPLI) these days when workplace issues are in the news on a regular basis.

EPLI provides protection against many kinds of employee lawsuits including claims alleging sexual harassment; discrimination based on age, race, gender or disability; wrongful termination, hiring or promotions; retaliation and wrongful infliction of emotional distress.

According to Williams, there are two areas in particular where EPLI is currently seeing increasing claims activity: sexual harassment and privacy.

“I’ll start off with the sexual harassment, and there’s been an uptick, particularly in severity, on those claims. There’s been an uptick in the frequency of those claims as well. It’s a challenging environment to litigate one of those cases in,” he said.

The second issue is biometric claims, driven by the Illinois biometric information privacy act.

“One of the requirements under that is that if you’re going to use biometric information of your customers or employees, you have to get a signed release from the employee or customer,” he said.

A number of employers have been using fingerprint technology to scan employees in and out and to clock when they’re coming and leaving work. In many cases, they did not get a signed release from the employee. “That’s resulted in class action claims brought against those employers alleging violation of this statute, sort of quasi-invasion-of-privacy claims,” he said.

Other claims areas that are relatively new include websites not in compliance with the Americans with Disabilities Act. “The website isn’t compliant if it doesn’t allow the disabled individual full use of that website because it hasn’t been programmed properly,” he said.

Travelers is among the insurers that will provide workplace violence expense reimbursement coverage that reimburses employers for certain expenses in the event of a workplace violence event. The expenses might include counseling, additional security, and services of a public relations firm to help a business through the crisis.

An employment practice claim is not a recommended experience.

“No one’s ever gone through an EPLI claim— which is a tremendously burdensome process in terms of the documents that have to be turned over, all the emails, the personnel files, the deposition the employer has to go through— no one’s gone through that process and ever said, ‘Boy, we’d like to do that again,’” Williams said.

Workers’ Compensation Claims for Leased or Temporary Workers

Many companies are increasingly turning to staffing agencies to meet their personnel needs for a variety of reasons, including increased workloads and high employee turnover rates. Companies that use staffing agencies can save money because they avoid selecting, hiring and training new full-time employees. In addition, using staffing agencies frequently offers companies peace of mind because they know that workers will show up and perform their duties consistently.

But what happens if one of the staffing agency workers is hurt on the job? Who is responsible for covering the injury? What if the injured worker wants to sue the staffing agency’s client company for negligence? Answering these questions requires a thorough understanding of the employment relationships between the staffing agency worker and the client company. And the way employees are classified affects how the staffing agency and the client company’s workers’ compensation and commercial general liability (CGL) policies apply to work-related injuries.

Workers’ Compensation Versus CGL

Generally, companies are required to cover an injured employee’s medical treatment and lost wages through a workers’ compensation policy. This is a system of no-fault insurance that affords employees some security while recovering from work-related injuries. In exchange for these benefits, employees waive their right to sue their employers for negligence and related damages. Workers’ compensation provisions apply only where an employer-employee relationship exists between a company and its workers.

CGL policies protect companies when third parties (non-employees) are hurt because of the company’s negligence or misconduct. The issue of CGLs is particularly important for companies with staffing agency workers because it is not always clear whether an employment relationship exists between the company and the staffing agency workers. To fully appreciate the complexity of the issue, companies must be able to properly

Leased Versus Temporary Workers

The definitions for leased and temporary workers vary from state to state, so an adequate classification of staffing agency workers requires a solid understanding of state and local requirements.

For CGL purposes, a leased worker is an individual leased to a client company by a labor leasing firm under an agreement between the company and the labor leasing firm to perform duties related to the conduct of the company’s business. The leased worker category does not classify staffing agency workers as either leased workers or temporary workers.

Leased Versus Temporary Workers

The definitions for leased and temporary workers vary from state to state, so an adequate classification of staffing agency workers requires a solid understanding of state and local requirements.

For CGL purposes, a leased worker is an individual leased to a client company by a labor leasing firm under an agreement between the company and the labor leasing firm to perform duties related to the conduct of the company’s business. The leased worker category does not include temporary workers. Under this definition, leased workers are considered employees of the client company and are, therefore, excluded from the client company’s CGL.

CGL policies define a temporary worker as an individual furnished to a client company to substitute for a permanent employee who is on leave or to meet the company’s seasonal or short-term workload conditions. Temporary workers are considered employees of the staffing agency and are covered by the staffing agency’s workers’ compensation policy and could be covered by the client company’s CGL.

The Coverage Gap

An insurance coverage gap exists when a leased employee is injured while in the client company’s employ. Leased employees are considered to be employees of the client company for CGL purposes, but they may not necessarily qualify as employees under applicable workers’ compensation regulations.

This results in employing individuals who could sue the client company for negligence (because they are not limited by applicable workers’ compensation provisions). A company with no CGL coverage must pay any court-ordered damages (because CGL coverage does not apply to the company’s employees).

Solutions to the Coverage Gap

To bridge the gap created by leased workers, companies can look at shifting work-related injury liability to the staffing agency through an alternate employer endorsement or an extension of their CGL coverage to injury to leased workers.

  1. Alternate Employer Endorsement

Client companies can negotiate with staffing agencies to include an alternate employer endorsement on the staffing agency’s workers’ compensation and employer liability policies. This endorsement protects the client company, providing coverage to the client company in the case of a tort action and by giving the client company all the workers’ compensation coverage the staffing agency enjoys.

  1. Coverage for Injury to Leased Workers

This endorsement can be added to the client company’s CGL policy by changing the language that excludes leased workers and temporary coverage from CGL coverage. However, companies should recognize that insurance carriers will disfavor this solution as it effectively removes an exception they intentionally built into the CGL policy.