April 2012 - Issue 2

Stress Less With Authority!

The Art of Risk Management

California JPIA Annual Contributions

The City of Lakewood Unearths Boundless Possibilities for Local Children of All Physical Abilities

Paul Zeglovitch, Liability Program Manager

Retaliation is Again the Most Common EEOC Charge

Swim if You Can: New ADA Access Standards for Pools and Spas

Are Employers Required to Provide Time Off for Workers’ Compensation Medical Appointments?

UPDATE: Independent Contractors and Background Checks (Live Scan)

Jon Shull

News: Worthy

Stress Less With Authority!

by Jonathan Shull, CEO

It’s that time of year again...Spring has sprung and April is showering us with everything from taxes to faithful family traditions, all of which must fit in to our already busy work schedules. Fortunately, April is also Stress Awareness Month!

We at the California JPIA understand how important balance is, both professionally and personally. Therefore, we continually strive to enhance the organization and its members’ benefits through a variety of innovative and effective means. After all, the California JPIA was created by the members, for the members. We work extremely hard to increase success for the pool as a whole as well as its individual members, while decreasing the impact of the many stressors inherent within the risk management industry.

That is why the California JPIA is so committed to its members and to serving as a multi-faceted resource for them, providing everything from advice and assistance in risk management organization, loss control, operational audits, general insurance, and more. The more we know, the more our members can know. Continuing education through our year-round training and specialized academies is another extremely important asset for members. With knowledge comes power — and often less stress because you are working more effectively. We encourage members to take full advantage of the varied and comprehensive services that the California JPIA offers to them.

Here’s to less taxing months ahead!

Work hard. Stress less!


News: Worthy

The Art of Risk Management

This November 7-9 the California Joint Powers Insurance Authority and its members from all over the state will travel north to participate in the California JPIA’s highly anticipated 17th Annual Risk Management Educational Forum. The educational forum, titled The Art of Risk Management, will appropriately take place in San Francisco, known for its cultural diversity, sophistication, and artistic prowess.

"The California JPIA is thrilled to hold its three-day forum in San Francisco, a beautiful, artistically stimulating, and inspiring city," said California JPIA CEO Jonathan Shull. "We find it an ideal location to gather as a team, away from our everyday work environment, to educate, network, and foster our creativity and skill set in The Art of Risk Management."

This year’s keynote speaker is Juliet Funt (smile...she is the daughter of Candid Camera creator Allen Funt). A highly sought after motivational speaker known for her humor, Juliet has mastered the ability to help people crack the code of finding productive and peaceful balance in an extremely busy and challenging world.

Due to the generous contributions of sponsors and the Authority’s Executive Committee’s sensitivity to the cost of professional development for agencies during these financially trying times, registration for members is free. Non-members may attend for the discounted early registration fee of $350. Attendees are responsible for their hotel accommodations at the Mark Hopkins. The educational forum rate at the hotel is $199.

Registration information will be emailed to members in May. Save the date!

The California JPIA is the largest municipal self-insurance pool in the state. Continually striving to offer innovative solutions for member risk exposures and losses, the California JPIA is progressive in its approach to risk management and training, including educational forums such as The Art of Risk Management.


News: Worthy

California JPIA Annual Contributions

by Alexander Smith, Finance Director

The California JPIA’s 2012/13 Annual Contribution amounts were reviewed and approved by the Executive Committee at its meeting on February 22, 2012. Retrospective computations were performed at the end of 2011 in both programs. The retrospective results were reviewed and approved by the Executive Committee at its meeting on December 14, 2011.

Staff made improvements to the Cost Allocation information located on the Authority website. The Cost Allocation home page now has three tabs: Annual Contribution, Retrospective Computation, and Retrospective Deposit Payment. Providing focus to each of these three areas of the cost allocation structure enables members to more easily find the information necessary to 1) better understand the cost allocation formulas, and 2) be better equipped to explain the cost allocation formulas to stakeholders.

Annual Contribution invoices will be sent to all members in May and will be due July 1, 2012. Members with retrospective refund balances will receive 25% of those balances as a credit on the Annual Contribution invoices. If your agency has a retrospective deposit balance in either program and you wish to pay some or all of the deposit balance(s), please note that the incentive plan for early payment currently offers a discount of 2% in the liability program, and 6% in the workers' compensation program. The discount rate for both programs drops by 1% on July 1, 2012.

Members may access the workbooks associated with each computation noted above via our website at: http://www.cjpia.org/strength/cost-allocation. If you have questions regarding how the cost allocation formulas are calculated, or if you need further information, please contact Carl Sandstrom, Business Projects and Facilities Manager, at (562) 467-8718 or by email at csandstrom@cjpia.org. Questions regarding invoicing or the incentive plan should be directed to Alexander Smith, Finance Director, at (562) 467-8727 or by email at asmith@cjpia.org.


Playground

Re: Members

The City of Lakewood Unearths Boundless Possibilities for Local Children of All Physical Abilities

It has been a little more than one month since California JPIA member, City of Lakewood, opened its first disability inclusive Boundless Playground at Mayfair Park...and people are still talking about it, a lot!

"I’ve been a city council member in Lakewood now for 37 years, and still one of my favorite parts of the job is being at a ribbon-cutting for a playground that will bring lots of smiles to lots of children for many years to come," said Mayor Larry Van Nostran of the updated park that creatively puts a modern twist on old-fashioned tire swings, "It’s very popular."

Also known as the Tread Town Playground, the park’s foundation utilizes over 400 recycled tires, creating a super-soft foundation that allows children and caregivers with and without disabilities to navigate the playground freely and safely.

When asked what the one word he would use to describe the playground is, Van Nostran replied with a resounding, "Fun!"

"It's a thousand times better," echoed an enthusiastic 8-year old Santiago Renteria.

The enhanced playground also boasts ramped wheelchair access to the highest platforms, state-of-the art solid harness swings for children who need additional back support and a multitude of other cutting-edge fitness and educational-based activities.

Lakewood was able to build the new playground by creatively combining two grants — a $50,000 inclusive play area donation from the Tire Pros national network of tire retailers, and a $150,000 park and open space grant secured by Los Angeles County Supervisor Don Knabe. The non-profit organization, Boundless Playgrounds, developed the playground.

"Lakewood remains committed to providing great play areas for all residents," said Van Nostran of the city that has already earned the title of Playful City USA. "Following on the successful heels of our Boundless Playground opening, the city is now planning to use federal community development block grants to build a new tot lot playground and picnic shelter at another park later this year."


Paul Zeglovitch

Pro: Files

Paul Zeglovitch, Liability Program Manager

A more than twenty-year veteran of working within the insurance claims industry, Paul Zeglovitch is a valuable asset to the California JPIA and its many members. Serving as the Liability Program Manager for the California JPIA, Zeglovitch has cemented his point-person status as he maintains what has become a vital hub in the organization.

"General liability claims drive a lot of what we do at the California JPIA and therefore my division intertwines with most facets of the Authority," said Zeglovitch who laughed when asked to describe his typical day at the office.

"It’s rarely typical," he continued when describing his busy work schedule that includes managing higher level litigation cases and overseeing the 1,500 – 2,000 claims per year general liability program that is serviced by Carl Warren & Company. And he wouldn’t have it any other way.

"I enjoy the diversity of my job. Although I am a claims guy, I am also involved in the ongoing risk management and loss prevention efforts of the California JPIA," added Zeglovitch. "I make it a priority to keep up to date on important litigation and industry trends. The various divisions of the Authority work closely together and keep each other well informed. We promote a real team concept."

Zeglovitch, who worked at Carl Warren & Company for fifteen years prior to joining the California JPIA in December 2008, also maintains close contact with the company’s Account Manager Dwight Kunz and the 19-member team of third party claims administrators who are assigned to the Authority’s account. Zeglovitch and Kunz hold weekly meetings to review and manage the account, implement new procedures, and assure that all of the claims are meeting the California JPIA high level of standards.

During his tenure at Carl Warren & Company, Zeglovitch worked on the company’s successful County of Los Angeles account serving as a Claims Analyst and Client Relationship Manager. This experience proved to be invaluable and provided a well-rounded education in government entity claims including dangerous conditions, inverse condemnation, employment, foster care, civil rights, police liability, and other areas.

He began his career as an adjuster for Transamerica Insurance and a Special Investigations Unit Investigator for American States Insurance and is often called upon to be a guest speaker on topics ranging from claims to litigation management. Among the various industry events that Zeglovitch has participated in as a speaker are the California Association of Joint Powers Authorities Conference and the Combined Claims Conference. He is also a regular contributor at the California JPIA educational forums and training sessions and serves as the Vice-Chair of the Southern California Chapter of the Public Agencies Risk Management Association. Zeglovitch is currently completing his Associate Risk Management designation.

When not working, Zeglovitch enjoys spending time outdoors, camping and boating, along with his wife, two teenage children, and high-spirited dog.


The Court Report

Retaliation is Again the Most Common EEOC Charge

by Tammie Haller, Human Resources Manager

Retaliation claims have increased dramatically in the last two years. In 2010, retaliation claims for the first time surpassed race discrimination as the most common type of charge filed with the U.S. Equal Employment Opportunity Commission (EEOC). Last year, the trend continued with 37,334 retaliation complaints filed, constituting 37 percent of the 99,947 federal workplace discrimination charges filed. EEOC Charge Statistics 1997 - 2011

The numbers speak for themselves. Escalating retaliation claims have made prevention initiatives a critical part of any serious effort to protect your agency against discrimination, harassment, and retaliation claims.

What can your agency do to minimize its risk?

  • Make sure your agency has adopted and implemented policies against harassment, discrimination, and retaliation. Ensure the policy addresses all forms of discrimination — including those identified in Title VII including gender expression and newly passed legislation like GINA.
  • Review, assess, and revise your anti-discrimination policies to ensure they address current law and the kinds of practical challenges your agency is facing. Your agency’s policies and training should also address the new forms of communication employees use (and sometimes misuse), such as social media and handheld technologies including smartphones and tablets.
  • Review and refine your agency’s process for receiving and addressing complaints from employees. The way your organization responds to a complaint — well-founded or not — may be the difference between employees who feel their complaints were addressed and resolved - and employees who feel like they need to call the EEOC or get an attorney.
  • Most important, ensure your agency provides "Preventing Discrimination and Harassment" training to its managers, supervisors, and employees. The training is offered free of charge to California JPIA member agencies.

Employers not only need to defend themselves against charges of workplace bias, but even after a case is decided — and whether or not the employer prevailed — the following case demonstrates Yogi Berra’s adage "it ain’t over ‘til it’s over."

Joaquin v. City of L.A. (CA2/4 B2266851/23/12) Retaliation /Writ of Mandate
Filed on January 23, 2012

From the California Department of Fair and Employment Housing (DFEH) Case Law files.

This case has a somewhat tortuous procedural history. Plaintiff Richard Joaquin, a Los Angeles Police Department officer, complained of sexual harassment by Sergeant James Sands in 2005. The department investigated and found Joaquin’s complaint unfounded. Sands then pursued a complaint against Joaquin for filing a spurious sexual harassment charge. Internal Affairs investigated Sands’s complaint, agreed that Joaquin’s charge was without foundation, and recommended that the matter be adjudicated by a Board of Rights. The Board of Rights found Joaquin’s charge to have been fabricated and recommended termination. The Chief of Police adopted the recommendation, and Joaquin was terminated effective March 2006.

Joaquin filed a petition for writ of mandate. The superior court granted the petition and ordered Joaquin reinstated, concluding that the Board of Rights’ findings were not supported by the weight of the evidence.

Following his reinstatement, Joaquin filed the present action against the City of Los Angeles (City), alleging that his termination was in retaliation for filing a sexual harassment complaint in violation of the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940 et seq.) A jury agreed and awarded Joaquin more than $2 million for lost wages and emotional distress.

The City appeals, contending, among other things, that the jury’s verdict was not supported by substantial evidence. Having reviewed the entire record, we agree that Joaquin did not present substantial evidence that his termination was motivated by retaliatory animus, a necessary element of his claim. We thus reverse the judgment.


Risk Management Solutions

Swim if You Can: New ADA Access Standards for Pools and Spas

by Jim Gross, Senior Risk Consultant

Since 1990, when the Americans with Disability Act (ADA) first became law, the Department of Justice (DOJ) has been issuing guidelines that public agencies must follow to comply with civil rights laws. In September 2010, the DOJ issued guidelines for recreational facilities, including a new rule that all public access swimming pools must provide a lift capable of moving a disabled patron from their wheelchair into the pool or spa. Most owners of public pools and spas have previously met this standard through the use of portable lifts.

Soon after releasing the guidelines for recreational facilities in September 2010, the industry began hearing rumors that the DOJ would require permanently fixed lifts for compliance and sought clarification from the DOJ; since the DOJ Fact Sheet issued in August 2010 did not imply that lifts need to be permanently mounted http://www.ada.gov/regs2010/factsheets/2010_Standards_factsheet.html

In January 2012 the DOJ issued the following fact sheet to offer clarity pertaining to the revised 2010 Standards for recreational facilities, specifically pool and spa accessibility. The fact sheet makes clear that a permanent lift is required where feasible; but, the new standard also provides for use of portable lifts when a permanent lift isn’t feasible and it provides guidelines for determining feasibility. http://www.aquaticaccess.com/PDF%20Files/ADA%20Help/DOJpools_2010.pdf

If you have questions about the permanent lift standard, please contact your agency’s designated risk consultant.


Risk Management Solutions

Are Employers Required to Provide Time Off for Workers’ Compensation Medical Appointments?

by Diana Rich, Workers’ Compensation Program Manager

The question of eligibility for temporary disability benefits for time off to attend medical appointments arises occasionally. Many California JPIA members have personnel policies or practices granting paid time off for appointments, without realizing it is a benefit not required under workers’ compensation law.

To determine entitlement to temporary disability or Labor Code §4850 salary continuation (paid in lieu of temporary disability), the employer must look at the reason for the absence. Temporary disability is a benefit payable if a job-related injury or illness results in an inability to work, or when the employer is unable to accommodate the work restrictions during recovery from the effects of the industrial injury.

An employee attending a medical appointment is no more disabled from performing the essential functions of his/her job than someone getting a haircut. Entitlement to temporary disability requires a medical certification from the physician to indicate the employee is unable to perform the essential functions of the job, or the employee has work restrictions which cannot be accommodated on a temporary basis. Without medical certification of inability to work, there is no entitlement to temporary disability or Labor Code §4850 benefits.

In 2004, this common-sense application of the law was clearly upheld in Kenneth Ward v. WCAB, County of San Joaquin/Sheriff’s Department. This case is on point for the particular issue facing the County, and it is a published and binding Third District Court of Appeals decision.

In Ward v. WCAB, a deputy sheriff claimed entitlement to Labor Code §4850 benefits for the time lost to attend medical appointments. The deputy was not temporarily disabled from work since the employer provided modified duty.

To quote the Court: "...during the period he missed from work for medical appointments, applicant had returned to work on "full shift," thus restoring his earning capacity and eliminating the income replacement rationale underlying TDI [temporary disability income]."

Employers may elect to provide broader benefits than those required by statute. An agency’s policies, practices, memoranda of understanding (MOU), or collective bargaining agreements (CBA) may provide that employees are to be paid for time off to attend medical appointments. It is important that this benefit be administered fairly and without discrimination. An agency paying time off for medical appointments should provide that same benefit to sworn employees eligible for §4850 benefits, and should not count the time taken as §4850 salary continuation. An agency contemplating any change in its practices should confer with its labor and employment attorney to ensure consistent and equitable employment practices.

Please be advised that if an agency elects to pay an employee for time off to attend medical appointments, the California JPIA’s Memorandum of Workers’ Compensation Coverage (WCMOC) will not reimburse the agency for this benefit.

For more information, please contact Diana Rich, Workers’ Compensation Program Manager, at (562) 467-8707 or drich@cjpia.org.


Risk Management Solutions

UPDATE: Independent Contractors and Background Checks (Live Scan)

by Bob May, Senior Risk Consultant

In the 2011 Spring/Summer edition of The Authority newsletter, the Authority provided guidance on conducting background checks (in compliance with California Public Resources Code 5164) through the Department of Justice’s Live Scan program. The article recommended members discontinue Live Scan for independent contractors as there is no statutory basis for the practice. Further, it was recommended member agencies modify their contracts with independent contractors by including provisions stating the independent contractors should submit their fingerprints via Live Scan and obtain criminal background checks on their own and provide the background information directly to the member agency.

Since that guidance was published, certain Penal Code sections may indicate that obtaining someone’s background results without proper authority may in fact violate the Penal Code and breach confidentiality regulations. That said, the Authority is seeking an opinion from the Attorney General’s Office on how agencies are to comply with Public Recourses Code 5164 without violating the Penal Code for independent contractors.

The Authority will provide updated information in The Authority newsletter as it becomes available.