Is Your Business Insured Against Terrorism?

picjumbo.com_IMG_7453There isn’t a time in memory when businesses haven’t been touched by the legal and financial implications of war. We’ve worked with and hired veterans who possess extraordinary commitment and skill. Our employees have been sent to war, and we’ve navigated the laws regarding their continued employment. We dutifully pay our taxes, knowing some of the funds will be used to finance the military. But, until the domestic terrorist attacks of September 11, 2001, we never had to consider war, or more specifically, terrorism, when choosing our business property insurance coverage. Until then, insurance companies hadn’t given it much thought either.

The History of TRIA

The aftermath of the attacks on September 11, 2001 changed that, and not for the better. Prior to 9/11, acts of terrorism weren’t specifically included or excluded by most insurance companies. After 9/11, reinsurers had no way to accurately gauge the risk of terrorism exposure, so they changed their coverage to specifically exclude acts of terror. Since reinsurers were no longer covering it, primary insurers excluded terror from coverage as well. State regulators approved such exclusions in most cases.

Since damages resulting from terrorist attacks were no longer covered, many business sectors became vulnerable, including construction, energy, transportation, real estate, and utilities. In 2002, to sidestep any potential threat that vulnerability could bring to the national economy, Congress enacted TRIA, or the Terrorism Risk Insurance Act.

What is TRIA?

TRIA requires primary insurers to offer terrorism coverage for specific types of insurance. To help offset the risk taken on by the primary insurers, the federal government will fill the role of reinsurer, serving as a backstop in the event of a terrorist attack. Primary insurers will submit claims to the federal government’s Share Claim Process. After reviewing and approving the claims, compensation will be dispersed to the primary insurers by the U.S. Department of Treasury.

The Federal Terrorism Insurance Program was established to handle administrative duties related to helping the post-9/11 insurance market recover, as well as to facilitate recovery after any future terrorist attacks. Overseeing the Federal Terrorism Insurance Program are the Secretary of the Treasury and the Federal Insurance Office.

The Future of TRIA

Each time TRIA is set to be considered for extension, anxiety arises from impacted sectors that are concerned about the possibility of canceled or unfunded projects. So, given the importance of TRIA, it’s clear that it will exist in some version for the foreseeable future. Recent history shows that to be true, too. In 2007, TRIA was amended and extended by Congress. In January, 2015, President Obama signed a six year extension of TRIA, staving off new concerns that commercial loans and projects could be halted if TRIA were to lapse.


Among other things, the Terrorism Risk Insurance Act (TRIA) requires insurers to offer certain types of coverage for acts of terrorism. But, the Act doesn’t make the insurers go it alone. Instead, TRIA assigns the federal government the role of reinsurer in the event of a terrorist attack. TRIA is the law, and insurers are obliged to abide by it. Click here for more information about TRIA, and click here for more information about the Federal Share Claim Process.

SEC Investigating Web-Savvy Pyramid Schemers

pyramid-schemePyramid schemers had better watch out. According to The Wall Street Journal, the Securities and Exchange Commission (SEC) is on the lookout for web-based pyramid schemes that may be exploiting the booming direct-sales industry.

Investigations are actively under way and at least one company has already been shut down by the SEC as a result of allegations it was nothing more than a “fraudulent $129 million pyramid scheme.”

Direct sales can be an extremely profitable business model. With more than 16.8 million Americans being employed in the direct sales industry, it is no real surprise that web-savvy con artists are interested in tapping into the industry’s success.

The problem is, these individuals are looking for an easy way to make money without having to sell a lot of product or offer a service people can use. This is what the pyramid scheme is all about.

The Basics About Pyramid Schemes

A basic idea behind the pyramid scheme is that the more people you recruit to “work” under you, the more money you will make. It is a multi-level marketing program where success is based on the number of people you can recruit, the number of people they can bring in under them, and so on. The people at the top of the pyramid stand to make the most money, as the people lower down are simply paying off the people who invested above them. Should recruiting action slow down or come to a halt, the money source will quickly dry up and the scheme will fall apart.

Joseph Mariano, of the Direct Selling Association, says pyramid schemers have evolved over the years and are now extremely adept at making their scheme appear as if it is a legitimate business. If you are involved in direct sales and more emphasis is placed on recruiting family and friends to join you in your direct-sales activities, or the list prices on items you are supposed to sell seem overly inflated, you may be involved in a pyramid scheme.

Internet Schemers: Putting a New Twist on a Very Old Type of Fraud

The SEC’s enforcement chief has stated that, “Fraudsters are leveraging social media to put a new spin on an old type of fraud.”

Platforms such as Twitter, Facebook, Instagram and others are prime places for these people to market their schemes, solicit recruits and entice others to join in. Others who come in on lower levels of these pyramid schemes may also consider social media as a way to boost income.

Unfortunately, The New York Times reports many such marketing offers are simply too good to be true. Creating fake friends (bots) on social media, and offering their services, has become its own pyramid scheme. Twitter reported to the SEC that approximately 23 million of its accounts are bots (fake accounts) and Facebook states it finds between 67 million and 137 million fake accounts each year.

Fake friend creators charge people who are interested in increasing the number of followers they have or in having their products and services promoted, yet deliver no discernible results. Companies and individuals who pay these types of schemers are often left with nothing more than false, inflated numbers.

The Wall Street Journal: SEC on Lookout for Web-Based Pyramid Schemes
Securities and Exchange Commission: Pyramid Schemes
The New York Times: Social Media Bots Offer Phony Friends and Real Profit

Supreme Court Rules Against Employees in Integrity Staffing Solutions Inc. Appeal


In the closely monitored high profile case of Integrity Staffing Solutions, Inc v. Busk, the United States Supreme Court has ruled that internet retail giant Amazon and its contracted employment agency, Integrity Staffing Solutions, are not required to pay employees for the time they spend waiting to be screened after they clock out from work. The original lawsuit stated that employees must wait up to 25 minutes every day just to pass through a security checkpoint, and that the wait is not optional.

In its decision, the Supreme Court noted that waiting in line does not pass the test of being “integral and indispensable” to their jobs, as is required by federal law. If the Supreme Court had ruled in favor of the employees, the decision would have had sweeping implications for other businesses that require their employees to pass through security checkpoints before leaving work.

Lawsuit History

The lawsuit was originally filed in 2010 by two employees who worked at one of Amazon’s facilities in Nevada. The employees contended that the security checkpoints were understaffed, and shifts for multiple employees ended at the same time. So, the lines to leave were often very long. They, and others, believed that because the security checkpoints were not optional they should be compensated for their time. The employees also believed that Amazon should be required to implement measures that would reduce the time spent waiting in line. A district judge did not buy the employee’s argument and dismissed the original suit.

On appeal, the lower court’s decision was reversed by the U.S. Court of Appeals for the 9th Circuit, where it was determined that the security checkpoints were in fact relevant to the employee’s jobs, and the searches benefitted the company. As a result of the court’s reversal, an appeal was then filed by Integrity Staffing Solutions, and it was heard by the Supreme Court.

The Supreme Court’s Response

In his response, Supreme Court Justice Clarence Thomas wrote that Amazon “did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.” Thus, the act of waiting to be screened cannot be categorized as “integral and indispensable” to the job. In addition, Justice Thomas wrote that the argument made by employees that methods could be used to reduce waiting time should be “properly presented to the employer at the bargaining table, not to a court.”

Justices Elena Kagan and Sonia Sotomayor agreed with the Court’s decision. They, too, made a distinction between the processes of checking in and out of work and actually performing assigned tasks. Since the security checkpoints are not relevant to the work performed, they argued, the company isn’t responsible to pay its employees for the time they spend going through the screening process.

Echoing the sentiment of the other judges, Justice Antonin Scalia stated during the proceedings that the search “is not part of the job”. Chief Justice John G. Roberts Jr. went even further, saying “No one’s principal activity is going through security screening. He hires them to do something else and then the employee screening is certainly not the principal.”

The case of Integrity Staffing Solutions, Inc v. Busk was critical because if the Supreme Court had sided with the employees, the decision would have set a nationwide precedent. The domino effect would have eventually resulted in hundreds of millions of dollars being paid to employees in nearly every industry.

It’s Not Just Customers Who Can Slip and Fall; Employees Also Face Risk

slip-and-fallThe busy holiday shopping season coincides with the onset of winter weather in Virginia, which can create slippery walking surfaces in and around shopping centers due to rain, snow, ice and snowmelt. While this can create a treacherous situation for customers, it can also lead to slips and falls for retail employees during their busiest time of the year.

These slips and falls by employees at shopping centers, malls, stores and other retail establishments can lead to workers’ compensation claims, not to mention painful injuries for employees.

According to the National Institute for Occupational Safety and Health (NIOSH), risk factors for slips and falls in the workplace include: ice, snow and rain; loose mats or rugs; spills; poor lighting; and walking surfaces in disrepair. NIOSH recommends taking steps to prevent workplace falls, such as placing signs when surfaces are wet, using slip-resistant mats, installing proper lighting and choosing flooring material that will reduce the chance of falls.

The Cost of Slips and Falls on the Job

Falls are serious business for employers and employees. Statistics from the National Floor Safety Institute indicate:

  • Falls account for more than 8 million emergency room visits, and slips and falls account for more than 1 million visits, or 12 percent of all falls.
  • Fractures often are the most serious consequences of falls, and occurring in 5 percent of people who fall.
  • Slips and falls represent the primary cause of lost days from work due to occupational injuries.
  • Slips and falls are the top cause of workers’ compensation claims and are the leading cause of occupational injury for people age 55 and older.
  • According to the Consumer Product Safety Commission, floors and flooring materials are the direct cause of more than 2 million fall injuries yearly.
  • 85 percent of worker’s compensation claims stem from employees slipping on slick floors, according to Industrial Safety & Occupational Health Markets 5th Edition.

Preventing Falls at Retailers

Zurich Services Corporation’s “Slips, trips and falls for retail,” offers a 10-point program meant to guide to help retail management teams reduce and control slips and falls in the retail environment. It indicates that business owners or managers must work to maintain safe walking surfaces at all times, especially when snow and ice are present.

The guide recommends slip-resistant flooring for retail outlets, citing studies that indicate 80 percent or more of the moisture on employees’ and customers’ shoes can be removed with the addition of quality entrance mats at store entrances.

The guide also reported that the average workers’ compensation claim value for slip, trip and fall accidents over a five-year period was $26,460, with falls related to ice and snow having an average claim value of $28,218.

Making a Claim for Workers’ Compensation After a Fall

In Virginia, all workers, including retail employees, may be eligible for workers’ compensation benefits if they have a slip-and-fall accident while on the job. If you need emergency medical treatment after the accident, make sure to tell the medical team you were injured on the job.

If you have been injured on the job in Virginia, you should file a claim with the Virginia Workers’ Compensation Commission. You should report the injury to your employer immediately – no later than 30 days from the date of the accident – and file a claim with the commission within two years of the accident.

Your employer may arrange for you to see a doctor after your accident. The employer should also file a report of the accident within 10 days. It’s also a good idea to seek help from an experienced workers’ compensation lawyer if you have suffered a fall while on the job.

Commercial Drones: Are They Legal?

droneAnytime potentially significant technology becomes available, new laws must be enacted to ensure the rights, safety and security of all who live and work with and around said technology. Unmanned aircraft, or drones, are no exception. The hype that has built around the business potential offered by drones has hit a fever pitch, with business owners even trying out drones as vehicles for product delivery. Be warned, however, because the legal path has not yet been cleared for businesses to take advantage of this new technology, and you could end up in court.

No Consensus

The Federal Aviation Administration, along with federal, local and state courts, have been grappling with the issue of drones, but they haven’t yet reached a consensus. The courts have reversed more than one FAA decision, though the FAA still prohibits all drone use for commercial or business purposes, except when an industry or business is given an exemption, as was the case recently in the Los Angeles area. Given that exceptions are available, is it easy to get one? The answer is no.

Can You Get an Exception?

Currently, there are three paths to being granted an exception to using drones for your business. Until the FAA and the courts come to an understanding and agreement on the rules of airspace use, it’s best to follow one of these three methods to avoid confusion and the headache of dealing with the FAA.

  • The first option is to make your way around some of the federal aviation regulations (FARs). For example, there is a FAR that requires a registration certificate to be displayed. Since drones are unmanned, there won’t be anyone aboard to see the certificate.
  • Second, someone who operates in the private sector can apply for an SACE, or Special Airworthiness Certificate/Experimental. This certificate can be used to fly the unmanned aircraft for specific purposes (research, training), but only in a very specifically defined area that must be approved by the FAA.
    The SACE application is 20 pages long, and consists of questions about the flight characteristics and design of the drone. Rarely does the FAA grant a request, and most that are approved are subjugated to one of only six sites that were approved by the FAA for research into drone integration. There are exceptions, however, including larger drones that are allowed to be flown in Alaska for the purposes of gas and oil exploration.
  • Finally, the third path is to be granted a Certificate of Waiver and Authorization, or COWA. Formally, this process isn’t available to civilians, but only governmental groups (military, police). While the FAA has granted several hundred COWAs, they have been mainly for said governmental agencies.

As is obvious, getting approval from the FAA to use unmanned aircraft for your business is challenging. Unless you own a business that does wildlife research, training, or has ties to gas and oil, right now at least it’s probably best to keep your ideas to implement a drone into your business plans on the back burner. While the courts may back you in the end, following the FAA rules now will save you a lot of time and money.

Liability and a Drug-Free Workplace

drug-free-workplaceThe competitive environment in which we live and work can tempt many business owners to cut corners to ensure they can keep their products and services competitively priced. Some things simply should not be cut, however, because they elevate the employer’s risk while only reducing the overhead marginally. A case in point is the importance of maintaining a drug-free workplace.

Even in today’s highly competitive marketplace, making sure that your employees are drug free and sober on the job is of paramount importance. Drug testing isn’t required in every industry, but regardless of the bottom line, if you want your business to thrive, you need to be confident that your employees are drug free.

Avoiding Liability

The number one reason given by business owners for mandatory drug testing is that it helps them avoid legal liability. The liability extends to co-workers as well as customers and clients. If an employee is intoxicated and causes harm to another person, or damages property, the business owner can be legally liable. So, when a business owner requires drug testing, it helps him weed out troublesome employees, thus mitigating the potential for problems. However, requiring drug tests to avoid liability issues will only work if you know the laws related to the process. Otherwise, you could be looking at a whole new set of liabilities.

Legal Limits

Drug testing has been recognized by various United States courts as an action that invades the privacy rights of citizens. As such, limitations have been placed on how and when an employer can require a current or potential employee to submit to a drug test.

Overall, those with the most rights are current employees since they could potentially lose their job if a drug test came back positive. Job applicants, however, only lose out on a job opportunity. Since the courts have fought to find a balance between individual and business rights, there are a few limitations that could apply to you and your business if you require drug testing. For example, the most commonly known laws related to drug testing revolve around prescription medication. Under the Americans with Disabilities Act of 1990, employers are not legally allowed to discriminate against someone who takes a legally prescribed medication that would otherwise be illegal.

Another example of legal protection related to employment drug testing is the act of requiring a specific group of people to be tested for drugs, while forgoing the requirement for others. If an employer only tested his Catholic employees, for example, he would be in violation of discrimination laws. An exception to this rule can be made if the employer requires drug testing for everyone who serves a specific role (ex: delivery drivers). It would not be considered discrimination if the same employer chose not to test the office staff.


The above are general scenarios associated with limits on drug testing. If you have a concern about a specific situation, and whether or not you are legally allowed to drug test someone, contact your state’s labor department.

Avoiding the Legal Pitfalls of the Hiring Process

hr-hiringSmall business owners often don’t have the resources to hire a fully staffed and experienced Human Resources Department. That leaves the owner or his General Manager to navigate the tricky laws surrounding the hiring practice. When was the last time you brushed up on the federal laws surrounding the application and interview process? Do you know what is legal to ask and say, and what areas must be avoided altogether? Here is a glimpse into the answers to those questions related to the hiring process.

Be Careful What You Ask

Regarding both the application and interview, every question you ask is perceived by the law as being relevant to your hiring process. So, before you ask a question, make sure that it pertains to potential employment, but, most importantly, make sure the questions you ask are legal. Certain areas of questioning are prohibited by state and federal law. Obvious examples include those involving the applicant’s religion, age, and race or ethnicity, among others. Additionally, some states have laws that include additional protected classes, and some even prohibit the inclusion of questions related to criminal history. For specific information about your location, as well as to find out about exceptions to these laws, contact your closest state EEOC office.

Job Description, Application and Hiring

Aside from ensuring that the questions you ask on the application and during the interview are legal and relevant, there are a few more things that must be considered when preparing for the hiring process. For example, when drafting the application, make sure to include the statement that you are an equal opportunity employer, and do everything you can to follow through on that claim. Also, add to the application verbiage that explains the application is not a guarantee of employment.

Do the same during the interview by avoiding language that suggests the applicant has been awarded the position. In order to assist you in your endeavor to truly be an equal opportunity employer, consider having more than one person interview the candidates. Alternatively, multiple people can sit on the interview panel. You will get diverse feedback that should help you choose the most qualified candidate.

Related to the job description, it is illegal to include information in the posting that refers to a preference for or against any legally protected class. As with the application and hiring questions, there are exceptions, but the job description should be reviewed by a qualified professional, such as a lawyer, before posting it.

Background Checks

The same sentiment that applies to applications and interviews should also apply to background checks. The federal government expressly forbids inquiries about disabilities, but other classes, such as gender, religion or nationality are not covered. Additionally, each state may have supplemental laws in place. Regardless, inquiries that seek to uncover information about anything unrelated to the job or the person’s qualifications can be used against an employer in a discrimination suit. So it’s best to avoid them altogether.

The most important step in your hiring process happens before you even release the job posting or application. As mentioned earlier, you should take your revised application and the job description to an attorney who specializes in employment law. Do this prior to releasing them. Make sure that what you have is sound and legal before you present it to the public. One erroneous inclusion or exclusion, however innocuous it may seem, can result in penalties and fines from the EEOC.

Understanding the Minimum Wage Component of the FLSA

fair-payOriginally enacted in 1938, the Fair Labor Standards Act, or FLSA, established the 40 hour work week and guaranteed time and a half under certain circumstances, among other federal mandates. One of the key provisions of the FLSA is the federal minimum wage, which currently stands at $7.25 an hour. Over the years, the FLSA has been amended a handful of times, so it can be complicated to try to determine which employers must adhere to its tenets, and which employees are protected by it.

The FLSA is enforced by the federal government’s Wage and Hour Division (WHD), which has in excess of 200 local offices in the United States. The WHD has the authority to investigate and enforce the FLSA should an employee file a claim. If a claim is substantiated, the WHD can fine the employer. So, it’s important for any business to have a firm grasp on who and what is covered under the FLSA.

Minimum Wage Exceptions for Young Employees

The myriad minimum wage exceptions can be confusing, and many of them come with strings attached. It is impossible to discuss them all, so here we highlight those involving students and youth.
For employees under the age of 20, the FLSA makes a clear distinction under their Youth Minimum Wage Program. Under this program, an employer can pay an employee under the age of 20 years old a rate of $4.25 per hour, but only for the first 90 consecutive calendar days. Once the 90 days has passed, the employee then must be paid the federal or state minimum wage, whichever is higher.

Another exception to the federal minimum wage rule is the FLSA’s Full-Time Student Program. Under this program, employers can obtain a certificate from the WHD that allows them to pay a full-time student “not less than 85% of a minimum wage”. The certificate also limits the number of hours a student can work, however. The maximum hours a full-time student can work under this program when school is in session is 8 hours per day and 20 hours per week. The student can work a full 40 hour week when school is not in session.

For high school students aged 16+ who are enrolled in vocational courses, the certificate allows an employer to pay no less than 75% of the minimum wage rate for the duration of the student’s enrollment. Keep in mind that some states do set a higher minimum wage requirement than the federal government, so research that information beforehand to ensure that you’re also in compliance with state laws.

What the FLSA Does Not Cover

While the FLSA seems to cover quite a bit of ground related to the do’s and don’ts of employee wages, there are a few areas that it does not delve into. For example, the FLSA does not have guidelines for how to issue breaks (with the exception of nursing mothers), holidays or vacations. Additionally, it doesn’t cover sick pay or severance packages, or regulate pay raises or final checks paid to terminated employees.

As evidenced by the example of exceptions that pertain to hiring youth, it’s clear that the minimum wage piece of the FLSA is complex. However, in order to avoid employees filing complaints with the WHD, as well as the subsequent fall out, it is important to familiarize yourself with the FLSA and stay informed about any changes to the Act. The WHD offers a handy, but thorough, reference guide to the FLSA. Of course, if you have questions, it’s best to contact them directly.

Workplace Safety and Notice Requirements

work-safetyRegardless of whether your business is a startup or long established in the community, or if it’s a sole proprietorship or a multinational corporation, there are federal business laws that you must follow. Not every federal business law applies to every business, however. Knowing which laws apply to you and your business will prevent you from enduring the stress and frustration of wasting money and time paying penalties and correcting any issues. Two basic, but critical areas of federal business law are the requirement of nearly every business to post specific notices, and the laws regarding workplace safety.

Posted Information

Beginning with the basics, federal law requires most businesses to prominently display certain official notices in common areas of the workplace, such as break rooms or kitchens. Ranging from OSHA notices to posters regarding minimum wage, the posting requirements vary from business to business. If you are unsure about which notices your business is required by law to post, consult the United States Department of Labor (DOL) FirstStep Poster Advisor. Some states also require additional notices, so check with your state’s labor department if you aren’t sure about local requirements.

Workplace Safety Laws

Focusing on the safety of your employees protects them, but it also protects you from lawsuits and government penalties for breaking the law, as well as violating OSHA standards. All businesses are required to adhere to federal safety laws, and the best and most convenient place to start is on OSHA’s Compliance Assistance webpage. The site is not comprehensive, as your business may need to meet additional requirements. But, it does offer guidance for every industry, including construction, health care, and general industries (retail, wholesale, manufacturing). It even offers assistance for employers who have a predominantly Spanish-speaking workforce.

In order to be certain that your business is in full compliance with federal safety laws, OSHA also offers a free on-site consultation program designed for small and medium-sized businesses. According to their website, in 2013, this OSHA program conducted about 30,000 workplace assessments.

In addition to federal workplace safety laws, each state may have its own set of additional requirements. Contact your state for further information, and to ensure that your business is also in compliance with state safety laws, should they be more stringent than those prescribed by the federal government.

Federal business laws can be complex and confusing given that not every law applies to every business. However, there are areas of law that every business must adhere to, regardless of size, as evidenced by the examples of the laws related to workplace safety and the requirement to post important notices. The question you need to answer is ‘which of those laws pertain to my specific business?’

If you are uncertain about which federal business laws may apply to you, complete the U.S. Department of Labor’s FirstStep Employment Law Advisor survey for clarity. While it doesn’t cover every federal business law, it does cover the major Department of Labor laws. If you have further questions, contact the Department of Labor. By ensuring that you and your business are in compliance with federal business laws you will avoid wasting time and money tangling with the government, and instead use those resources toward something more useful – growing your business.