Blog Archives - Page 9 of 29

Managing Employee Benefits: A Three-Legged Stool of Protection

By Lynda

For many design firms, the ability to offer and maintain competitive employee benefit programs continues to be one of the keys to attracting and retaining the best available talent. Yet, the regulatory and legal environment within which these benefit plans are being designed and administered is more complex than ever. Not only are there ERISA issues, but there is a literal alphabet soup of COBRA, FMLA, HIPAA, etc. With this greater complexity and heightened scrutiny comes risk: risk for the company itself, and the executives and administrators responsible for overseeing and administering the benefit plans.

The good news is that the risks are manageable and design firms with employee benefit programs can take advantage of a three-legged stool of insurance protection – Employee Benefits Liability Insurance, ERISA Bonds, and Fiduciary Liability Insurance. Many executives and administrators are confused about what each of these covers and whether or not they need them. This article will explain how each coverage evolved and what specific exposures they address. We also examine some risk scenarios based on actual litigation.

Employee Benefits Liability Insurance

Employee Benefits Liability insurance (EBL) very simply provides protection against claims arising from errors in the administration of employee benefit plans. This coverage was developed in the mid-1970s largely in response to exposures that arose from the 1962 court decision in Gediman v. Anheuser Busch. In this case, an employer was held accountable to the estate of a former employee for providing incorrect information to the health insurance company, which then in turn denied the employee’s claim. Thus, EBL insurance addresses claims arising out of errors or omissions in the administration of benefit plans. Three typical exposure scenarios covered by EBL insurance include:

An employer failing to properly enroll an employee for health insurance coverage, resulting in a denial of coverage.
An employer not providing an employee with the appropriate COBRA information after termination, resulting in the ex-employee being unable to continue participating in the health insurance plan as required by law.
An employer incorrectly calculating the amount of an employee’s pension benefit so that the employee decides to retire early only to find that the amount is much less.

Continue reading “Managing Employee Benefits: A Three-Legged Stool of Protection”

The Keys to Keeping a Project on Track

By Lynda

In 1985, after five years prosecuting criminals as an assistant US attorney, I became deputy general counsel of The American Institute of Architects. On my very first day, I was introduced to civil law. In his gravelly voice, the general counsel explained to me that the key to success in my new position was to “think liability”. I understood, as the traditional casebooks teach in law school, that appellate decisions in commercial cases tend to focus on determining where something went wrong and deciding who should be blamed. Liability was the proverbial ‘hot potato’, something to be avoided at all cost. As a result, lawyers teach and are trained to concentrate on anticipating potential liability and finding ways to avoid or transfer it so their clients are not caught in its web. The general counsel wanted me to think the same.

There are big downsides to lawyers defining “success” as drafting a contract intent on anticipating potential failures and pushing responsibility to other parties with the least bargaining power. Project problems require a nimbleness that can be lost if contract structures are excessively rigid. The industry as a whole also incurs huge costs from procedural requirements that needlessly force parties to jump through time-consuming hoops before an issue can be resolved. This kind of “success” hurts and ultimately impairs the competitiveness of the U.S. construction market.

The better a contract party has allocated project risk away from itself, the more it may also have created disincentives for other parties to collaborate, prevent problems and, when they occur, find solutions. It can also hurt the party who has used market power to divest itself of risk. Self-serving narcissism has never built either the trust or the chemistry necessary for group effort to succeed or for firms to get hired. It can also hurt the legal profession: Too many in the business world already think the best way to lose a deal is to bring in a lawyer to draft a contract. And these problems are all easily avoidable and totally unnecessary. Continue reading “The Keys to Keeping a Project on Track”

Drugs in the Workplace Study: Architects & Engineers Prefer Alcohol

By Lynda

Compared with many other industries, the Engineering and Architecture community has a relatively low abuse/dependence rate (7.9%) on any substance, and alcohol is the substance these design professionals are most likely to be dependent upon. This is according to a 2010/2011 national survey completed by the Substance Abuse and Mental Health Services Administration.

“Coping with substance abuse and dependence is a big enough challenge on its own, but balancing both an addiction and a career can pose an even bigger struggle. The impact of drug abuse on workplaces is astronomical, costing the United States $120 billion in lost productivity in 2007¹. Alcohol abuse is similarly widespread, with 15% of American workers reporting being impaired by alcohol while at work at least once during the previous year². And the effect on safety can be potentially catastrophic: Employees involved in accidents were more than four times as likely to test positive for opiates³. So what are the patterns of substance use across America’s industries?” — Treatment4Addiction.com

You can visit the Treatment4Addiction website for analysis and presentation of the survey data. As you’ll see, while Design Professionals rank mercifully low on this list, Construction Trades & Extraction Workers rank unfortunately high (17.4%), with “heroin as their most disproportionately used substance. Their widespread abuse of a powerful opiate may reflect the prevalence of chronic back pain and untreated injuries in the field.”

AIA College of Fellows Elevates Christ J. Kamages of California

By Lynda

Churches, cathedrals, and temples have historically drawn attention for their architectural beauty. Sometimes these buildings took centuries to complete, employing tens of thousands of craftsmen, all to meet the original vision of a single architect, inspired by the great Architect in the sky. It would be a mistake to think that–with the exception of project length and the architect’s scope of services–this has changed. Modern churches and temples continue to rise all over the world, and the architects behind them are often motivated by their own faith. These buildings are often spectacularly intricate, having been designed with a whole and holy purpose in mind.

One architect who has dedicated his practice to the design of such buildings is a/e ProNet client Christ J. Kamages of CJK Design Group in California. Many of the glorious, golden domes of modern Greek Orthodox churches, cathedrals, and missions across the country can be attributed to him. Last month, Mr. Kamages’s 33-year career earned him the honor of being elevated to the AIA College of Fellows at a ceremony in Atlanta, Georgia.

As noted on the CJK Design Group blog:

Established in 1857, the American Institute of Architects is a professional association made up of Architects and a related field, which seeks to “promote the scientific and practical perfection of its members” and “elevate the standing of the profession.” Through the AIA, standards of ethics and business practice have been developed and members hold each other up to maintain the highest standards. Each year, the AIA selects Architects from its membership to be elevated to the status of Fellow. Fellowship is one of the highest honors the AIA can bestow upon a member. Elevation to Fellowship not only recognizes the achievements of the architect as an individual but also elevates before the public and the profession those architects who have made significant contributions to architecture and to society.

Mr. Kamages was one of only 147 architects to be elevated to the College of Fellows this year. Of the 85,000-architect membership, only 3,200 have received this distinction.

Congratulations to Mr. Kamages and his fantastic team. We look forward to seeing many more beautiful designs from you in the years to come!

Shout-out Credit:

Leslie Pancoast, CIC, RPLU
Managing Partner
IOA Insurance Services – Pleasanton, CA
Email: Leslie.Pancoast@ioausa.com / Phone: 925-416-7862

Blog Love: Victor O. Schinnerer’s Risk Management Blog

By Lynda

Yes, we know. We’ve given them a shout-out before, but it’s well-deserved. Here’s an excerpt from their most recent post, an answer to a design professional FAQ:

Why are some words in your contracts capitalized and others aren’t?

I recently received a telephone call from a policyholder asking this question because of a minor issue that arose when the term “notice of award” was capitalized in the general conditions, but was not capitalized in the instructions to bidders. His attorney advised that “it could be argued” (a not-unusual term for an attorney to use when trying to interpret contract language) that since the term was not capitalized in the instructions to bidders that it was not the same as the written notice defined in section 1 of the general conditions. The policyholder advised that the issue of telephone notification vs. written notification had been resolved, but it got him thinking about the many terms in his contract documents that are sometimes capitalized and sometimes not and he wondered why.

Capitalized words by convention usually mean defined terms. For example, “XYZ Corporation (‘Client’) promises to….” allows the rest of the contract to use “Client” instead of the full name. The same applies to other defined terms. You define them and then use the capitalized word thereafter to differentiate it from common English terms interpreted as their common meaning.

Visit the Schinnerer RM Blog to continue reading…

Scholarship Deadline Extended to April 17th

By Lynda

If you or someone you know is an architecture student, we’ve got some good news. Each year, we offer a pair of scholarships in partnership with the AIA, and the deadline for the 2015 applications has been extended through the end of the week!

The scholarship is open to fourth-year undergraduates, and graduate students of architecture enrolled in an NAAB-accredited professional degree program. The promotion and selection are handled entirely by AIA. Eligible candidates are required to submit an application to AIA’s national headquarters in Washington, DC, on their standard application form. Submissions are reviewed by jury members of the AIA Practice Management Knowledge Community. Candidates must submit a copy of their transcripts, two letters of recommendation, and an essay on how they would resolve a project management dilemma.

Extended Deadline: 17 April 2015

How to Apply

We want to help architecture students succeed. Good luck to all who apply!

Read about past winners of the a/e ProNet AIA David W. Lakamp Scholarship here.

“Brochurebiage”

By Lynda

Yes, “brochurebiage” is a word we made up. It refers to that optimistic and puffed‐up verbiage that can creep into a professional’s brochures or other promotional materials. Many people are rightfully proud of their past work and skill and need to sell that experience and ability to prospective clients. However, use such language with caution.

Licensed professionals promoting themselves as the best around can be an effective way to attract clients. The risk comes when they enter into a contract that refers to or incorporates language in promotional material because it could needlessly raise the standard of care. In California, while licensed professionals may hold themselves to a high personal standard, the default legal standard by which professional negligence or malpractice is evaluated is the standard of care of an average professional in the same field and community. This default standard of care is favorable for licensed professionals because it means to avoid liability, they do not need to be perfect. After all, who is?

This average standard of care can be modified however through contract. Professionals sometimes inadvertently do this when a contract refers to or incorporates a proposal or other promotional item that promises superlative services or the “highest standard of care.” Including a standard of care that goes beyond what is required by law unnecessarily raises the bar for performance and exposes the professional to a greater risk of liability if there are allegations that the work was anything less than perfect. Additional problems may arise because professional liability insurance typically covers the average standard of care, so a contract promising a higher standard might not be covered, which could leave the professional on the hook alone.

To minimize this risk, avoid exaggerated language that over‐promises in contracts. Rather than say a professional will provide the absolute best services, say they work hard to provide professional services that lead to successful projects. Show clients examples of superlative work. Finally, avoid contracts that refer to or incorporate promotional materials because that could unnecessarily raise the standard of care, or limit such incorporation only to the scope or fee portion of the proposal. Highlighting past success and emphasizing skill is necessary to generate business, but exercise caution and balance when using or referring to brochurebiage in contracts.

This article has been reprinted with permission from its authors, David E. Barker and Erin Dunkerly of Collins Collins Muir + Stewart LLP in California.

Nothing contained in this article should be considered legal advice. Anyone who reads this article should consult with an attorney before acting on anything contained in this or any other article on legal matters, as facts and circumstances will vary from case to case.

Boxouse: Young Americans Turn to Alternative Housing

By Lynda

Signs of recovery in the American housing market–in architecture, engineering, construction, real estate–are increasing. Yet, in 2014, the market saw a new, disappointing record:

The number of homeowners under the age of 35 hit its lowest point ever.

Home ownership has long been synonymous with the American Dream. But where are the young people in this game? Some have turned to alternative housing solutions.

Pacific Standard magazine recently blogged the experience of Luke Iseman, a 31-year-old graduate of the Wharton business school, who lives in a white shipping container on a small lot in West Oakland. Driven from the traditional urban housing market as a renter by exorbitant rates in San Francisco, and holding more than $60,000 of student loan debt, Iseman is putting his burgeoning business savvy to good use for himself and others with the establishment of an alternative housing start-up called Boxouse. Continue reading “Boxouse: Young Americans Turn to Alternative Housing”

Document Retention: Rules of Thumb for Design Professionals

By Lynda

In this age of terabyte-sized digital memory banks and the seemingly infinite storage possibilities of “the cloud,” understanding how long a design professional should retain project documents can be tricky. More and longer aren’t always better, but there are legalities to consider before any kind of purge takes place. For architects and engineers, basing a firm-wide retention policy on consideration of the relevant statute of repose is usually a good start. For latent defect claims in California, for example, that’s ten years from the date of substantial completion.

According to attorney Jennifer Suzuki at Long & Levit LLP in California:

There is no statute of repose for personal injury claims arising from alleged construction defects. (Such claims must be brought within two years from date of injury regardless of completion date.) Although it is much less expensive these days to retain records in a digital form rather than in hard copy, most firms do not find it feasible to retain all their records in perpetuity. It’s always a judgment call based on a cost/benefit analysis.

In the absence of notice of a pending or threatened claim, I believe many of our clients retain their records for ten or twelve years. (The additional two years allows extra time for Doe amendments and delayed service of process.) Some clients designate different retention periods based on the type of project record, e.g., correspondence, drawings, etc. In the event of a pending or threatened claim, clients should adopt a litigation hold so that no potentially relevant records are inadvertently destroyed as part of a normal destruction policy.

The following is an excerpt from the Small Businesses & Self-Employed page on the IRS website. Just a few rules of thumb on tax-related documents:

The length of time you should keep a document depends on the action, expense, or event the document records. Generally, you must keep your records that support an item of income or deductions on a tax return until the period of limitations for that return runs out.

The period of limitations is the period of time in which you can amend your tax return to claim a credit or refund, or that the IRS can assess additional tax. The below information contains the periods of limitations that apply to income tax returns. Unless otherwise stated, the years refer to the period after the return was filed. Returns filed before the due date are treated as filed on the due date.

Note: Keep copies of your filed tax returns. They help in preparing future tax returns and making computations if you file an amended return.

1. You owe additional tax and situations (2), (3), and (4), below, do not apply to you; keep records for 3 years.

2. You do not report income that you should report, and it is more than 25% of the gross income shown on your return; keep records for 6 years.

3. You file a fraudulent return; keep records indefinitely.

4. You do not file a return; keep records indefinitely.

5. You file a claim for credit or refund* after you file your return; keep records for 3 years from the date you filed your original return or 2 years from the date you paid the tax, whichever is later.

6. You file a claim for a loss from worthless securities or bad debt deduction; keep records for 7 years.

7. Keep all employment tax records for at least 4 years after the date that the tax becomes due or is paid, whichever is later.

We’ve also published a ProNetwork News issue on this topic, titled Document Retention and Disposition: A Key Element of a Design Professional Quality Control Manual. If you have questions about document retention or other risk management-related issues, don’t hesitate to call on your local a/e ProNet broker!

Disclaimer: As with all posts on The ProNet Blog, this post is not intended to convey legal advice. Readers in all cases should engage competent legal counsel with respect to particular issues, contracts, and disputes.