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MULTIPLE ACQUISITIONS? NO PROBLEM. HOW JAN BERGER CENTRALIZED JACUZZI BRANDS’
RISK MANAGEMENT STRATEGY

This veteran risk manager consolidated a risk management program as his company
grew rapidly.
By: Alex Wright | July 25, 2022
Topics: July/Aug. 2022 Issue | Risk All Stars | Risk Management



Jacuzzi Brands went through a significant period of acquisition growth between
2010 and 2019.

During that time, the company, which is a global manufacturer and distributor of
branded baths, hot tubs, pools and saunas, acquired Sundance Spas, Hyrdopool,
Dimension One and ThermoSpas.

But the problem was that each brand had multiple risks across different programs
with different renewal dates, managed by up to seven different brokers. That
meant the company’s overall global risk management strategy was decentralized,
fragmented and siloed, making it difficult to manage, inefficient and costly in
servicing and premium terms.

That’s when Jan Berger came in.

Appointed director, global risk management in October 2019, he quickly got to
grips with the program’s structure and devised a two-year plan to consolidate
all the program’s administration under one broker.

Berger proceeded to align the risks under three main renewal dates for property,
casualty and management liability. That way, he was able to align all the
renewal dates within each category on the same date.

To achieve better pricing, Berger’s intent was to eventually move the property
program’s renewal date to the spring just before the hurricane season; the
casualty to the fall when it set its financial forecasts; and the management
liability to the end of the year when the board approves the directors and
officers coverage.

Initially, he worked with the company’s principal broker, Aon, and then with
Marsh, to simplify the program by consolidating all the risks under one global
program and removing the other smaller brokers involved.

On top of restructuring the program, in October 2019, Berger also had to secure
property coverage for the company’s worldwide assets, including its principal
spa manufacturing plant in Tijuana, Mexico after that site had incurred losses
from a fire in August 2018. When the incumbent had denied cover prior to the
renewal in May 2019 due to concerns over risk controls, the company arranged a
90-day coverage extension, followed by another extension until November 2019.

After quickly engaging Aon to find every insurer interested in writing the
property risk, Berger put together a presentation that explained the company’s
risk control measures, and how much money had been spent on it and where.

Despite securing coverage at a higher premium with less favorable terms and
conditions in November 2019 and a flat premium renewal the following year, he
negotiated an extension to March 2022 at the current policy rate.

“By the time I had left the company in November 2021, 90% of my two-year plan
was complete,” said Berger, who is now senior director, group risk management at
APL Logistics.

“During that time, working with the principal broker, at the last renewals, we
managed to reduce the property premium by more than $200,000 and achieved annual
savings of more than $1 million on the casualty program.” &

--------------------------------------------------------------------------------

Every year, Risk & Insurance selects deserving candidates to become Risk All
Stars. These are risk managers who, through their perseverance, passion and
creativity, make a big difference to the stability of their organizations.

See all the 2022 Risk All Star Winners here.

Alex Wright is a UK-based business journalist, who previously was deputy
business editor at The Royal Gazette in Bermuda. You can reach him at
riskletters@theinstitutes.org.





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SPONSORED CONTENT BY QBE NORTH AMERICA



IN TODAY’S POLARIZED CULTURE, COMPANIES MUST HAVE CLEAR POLICIES FOR EMPLOYEE
SPEECH TO AVOID REPUTATIONAL DAMAGE AND EPL CLAIMS

Employees are engaging in more forms of political speech. The right carrier can
help you minimize the risks that arise.
By: QBE North America | March 1, 2023

Over the past few years, more and more employers have encouraged employees to
bring their whole selves to work.

The age of social media has encouraged increased sharing of all aspects of our
lives, and its effects have trickled into the workplace. Employees who once
eschewed discussions of politics or cultural issues in the office might now
share photos from a protest they attended or wear a T-shirt with a political
slogan. Others might more readily share personal details about their families or
their children.

With this increased openness, however, comes increased employment practices
liability (EPL) risk. Employees who are terminated for inappropriate workplace
communication or violating a company’s social media policy may sue, alleging
racial, gender or religious discrimination.

“There was a time when EPL was only catastrophic insurance, and now it has
evolved into everyday response insurance,” said Mary Anne Mullin, SVP, fiduciary
and EPL product leader, QBE.

“I think it’s incumbent upon us to be aware of what is going on in the world
because it filters down to the workplace, where it can result in exposure under
our policies, and to our employer insureds.”

Over the past few years, a number of lawsuits have illustrated the greater risks
of today’s increasingly political and polarized workforces. Some employees may
misunderstand what types of speech their private employers can and cannot limit,
resulting in lawsuits that may be unfounded.

Employers can protect themselves by educating their employees on company
policies and consistently applying any rules they have about what is and is not
appropriate communication.


RECENT EPL CASES: WHAT’S DRIVING THEM? HOW CAN THEY HELP EMPLOYERS UNDERSTAND
CURRENT EXPOSURES?

Mary Anne Mullin, SVP, Fiduciary and EPL Product Leader, QBE

Employees often believe that the first amendment protects their right to say
whatever they want inside or outside the workplace, though that is a
misconception.

The first amendment only protects people from the government encroaching on
their right to express their views. Private employers may create policies
governing employee code of conduct, including limitations on what types of
communication are appropriate for their workplace and their employees.

“There is no blanket right to free speech in the private workplace,” said Kristi
Garrett, VP, associate general counsel, QBE.

“Employers may generally terminate ‘at will’ employees, for example, for
expressing certain views inside or even outside the traditional workplace
environment. In an age of social media, using that power has become very
complicated. Even views expressed by someone outside of work and having nothing
to do with work can become an issue because expression outside of the workplace
may have employment-related consequences.”

Still, there are some forms of speech that are protected in the workplace.
Individual states may have laws protecting certain forms of communication, like
social media posts, for instance. Under the Federal National Labor Relations
Act, employees cannot be terminated for discussing working conditions, wages and
union organizing. Title VII protects workers from being terminated or
disciplined after making claims of discrimination in the workplace.

When an employee sues their employer, they will often allege racial, religious
or other forms of discrimination. In the case Carter v. Transp. Workers Union of
Am. Local 556, flight attendant Charlene Carter sued Southwest Airlines and the
union she was a part of after being fired over anti-abortion Facebook posts and
messages she sent to the union’s president, according to the Associated Press.
Carter believed union dues had been used to help other Southwest flight
attendants attend the Women’s March, which supported abortion.

A jury initially awarded her $5.1 million, saying the company discriminated
against her sincerely held religious beliefs, though Mullin and Garrett say that
award has since been reduced and litigation remains ongoing.

“She’s an abortion opponent and she wrote strong emails expressing her
displeasure,” Mullin said. “The company was ordered to reinstate her.”

Still, just because an employee claims discrimination doesn’t mean the courts
will agree. Whether the court system sides with the business or the worker
depends on a variety of factors, including how consistently a company’s policy
is enforced.

Take the recent case Kinzer et al v. Whole Foods Market Inc. as an example.
Three former Whole Foods employees sued the company, alleging they were
illegally fired for donning Black Lives Matter masks during the pandemic in
violation of the company’s dress code.

Because the company had a dress code policy that prohibited employees from
wearing attire with any logo other than the one belonging to Whole Foods, the
judge ruled in favor of the employer.

“It didn’t matter if it was Black Lives Matter, a political slogan or even a
sports team logo, you weren’t allowed to wear anything other than Whole
Foods-branded attire,” Mullin said. “Whole Foods had a very clear dress code
policy.”


HOW EMPLOYERS CAN PROTECT THEMSELVES FROM EPL RISKS

Kristi Garrett, VP, Associate General Counsel, QBE

Though there are many new entrants in the management liability insurance space
and rates remain stable, from a carrier perspective, one of the most valuable
things a risk manager can do is develop a strategy for preventing EPL claims.

Clearly communicating policies, enforcing them consistently and making sure the
company is in compliance with shifting laws are just a few strategies for
staying ahead of EPL risks.

“As the EPL insurer, we must pay for the cost of defending the claim regardless
of liability. So, the key is preventing the lawsuit in the first place,” Garrett
said.

Human resources departments should make sure they’re up to date on shifting
state and federal regulations and state laws. This is especially important for
businesses with locations in California, which tend to be litigation-heavy.

“A large California presence could possibly increase your exposure,” Mullin
said.

Consistency is also key. All policies limiting any form of speech need to be
enforced equally among employees, otherwise a worker may be able to claim
discrimination. Going back to the Kinzer et al v. Whole Foods Market Inc. case,
part of the reason Whole Foods came out victorious was because they were able to
prove they enforced their no-logo policy consistently.

“If, through the discovery process, the plaintiffs had been able to prove that
that policy was enforced on an erratic basis or against some groups of people
more than others, then they might have been able to prove disparate or
discriminatory treatment,” Mullin explained.


CHOOSING STRONG EPL RISK PARTNERS

With EPL case law and legislation shifting, often on a state-by-state basis,
it’s important for insureds to retain the right insurance carrier.

QBE partners with an employment practices law firm to provide a number of risk
management services to help prevent EPL claims and support insureds when a loss
occurs. For instance, the firm can review employment manuals to see if they are
up to date and provide employment-related training. They also operate a hotline
where employers can call in with questions. “An insured can ask a particular
question that they just need a quick answer to, hoping to nip a potential
problem in the bud,” Mullin said.

“EPL laws are constantly changing,” Mullin said. Having a strong insurance
partner is critical, especially for small to midsize companies, which may not
have the internal resources to create and update guidelines and policies.
Insurers have found that even large companies with well-resourced HR teams can
appreciate having a second set of eyes on critical documents.

Both QBE’s underwriters and claims professionals have extensive expertise on EPL
exposures. Many have law degrees, and the teams work together to draft policy
language. When a claim occurs, the QBE team tries to approach litigation from
the client’s perspective rather than pressuring for a settlement or trial.

“Both teams look at all the policies when we renew, and when we rewrite a
policy. That way, the claims professionals are not saying one thing while the
underwriters are saying a different thing to our clients.”

Most importantly, they remain abreast of current litigation and trending EPL
risks so that they can continue to act as a risk management partner for their
insureds.

“The world never stops changing. That means employers and insurers must adapt,”
Mullin said. “We have to keep up so that we can best serve our clients.”

To learn more, visit: https://www.qbe.com/us/qbefinancial.





This article was produced by the R&I Brand Studio, a unit of the advertising
department of Risk & Insurance, in collaboration with QBE North America. The
editorial staff of Risk & Insurance had no role in its preparation.

QBE North America is a global insurance leader focused on helping customers
solve unique risks, so they can focus on their future. QBE operates out of 27
countries around the globe, with a presence in every key insurance market. QBE
insurance companies are rated "A" (Excellent) by A.M. Best and "A+" by Standard
& Poor's.







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The R&I Editorial Team can be reached at riskletters@theinstitutes.org.





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