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Perspectives: Standard of care rising for employees in threat-elevated areas

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INTRO: Corporations that have employees who work in threat-elevated areas must provide those employees with proper training and briefings before sending them into harm's way. Matt Rix, director of information for SBS Training Solutions, explains some of the ways corporations can protect themselves and their employees against threats.

For employees working within threat-elevated areas, such as along the U.S.-Mexico border or overseas, the bar for the standard of care is rising, and the concepts of adequate kidnap and ransom insurance is rapidly changing.

Corporations that are slow to respond may find themselves in high-profile lawsuits with legal demands that penetrate the insurance layers of the primary employer's liability limits and their umbrella policies, assuming they are fortunate enough to have this type of coverage. Proactive companies will find themselves in a much better position to defend against suits, both in the legal courts and the courts of public opinion.

In the United States, if an employer fails to provide employees with ongoing briefings and training to help avoid or deal with these types of threats, there is a significant opportunity for the plaintiff to claim negligence on the part of the employer. Under normal circumstances, employees involved in an auto accident or carjacking during the usual commute to and from their place of work (from their primary residence) would not be able to make a worker's compensation claim successfully. This is because driving to and from the place of primary employment is not considered to be within the “course and scope of employment.”

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Yet those who find themselves attacked on the way to work in a threat-elevated area probably would have a cause of action against the employer, especially if the employee were assigned to the area and given little or no information regarding the elevated threat within the area. Individual cases would determine the viability of the various workers compensation coverages (or other liability coverages) depending upon the actual coverage and policy language.

Flavia Wagner v. Samaritan's Purse

While no company can guarantee 100% protection for its employees in every situation, all companies have the legal and moral obligation to take reasonable steps to provide as safe a working environment as possible for their employees, regardless of the location or conditions.

Ignoring these obligations can be hazardous to your employee's health and to your bottom line. This is especially true when it comes to education and training programs that deal with issues such as threat awareness, surveillance detection, anti-kidnapping techniques and hostage survival skills.

For example, a former U.S. aid worker who was kidnapped in the Sudan filed a lawsuit in a Manhattan court May 2011 against the Rev. Franklin Graham's Christian nonprofit organization, Samaritan's Purse. Flavia Wagner, 36, was kidnapped soon after her arrival on May 18, 2010, in the war-torn region of Southern Sudan and was held for 105 days before being released.

As detailed within her lawsuit, she was subjected to appalling physical and emotional abuse, death threats and long-term solitary confinement. Ms. Wagner accused Samaritan's Purse of failing to adequately inform her of the threat, failing to properly train her, and of willfully ignoring the warning signs that kidnappings were a threat to foreigners within the Abu Ajura region.

Furthermore, Ms. Wagner alleged that not only was Samaritan's Purse reckless in sending her to that location without proper information and training, they delayed paying her ransom solely to save money. The lawsuit states: “While Samaritan's Purse possessed the resources to extricate plaintiff from her captivity quickly, it instead embarked on a plan designed to protect its own financial and political interest.”

The lawsuit claims the delay in the ransom payment caused her greater suffering than if the ransom had been paid earlier and with less regard for economics than for her safety. Ms. Wagner's lawsuit not only names Samaritan's Purse, but also includes the negotiation group, Clayton Consultants Inc. This lawsuit is an example of changes affecting corporations and the potential problems arising when employees are working in threat-elevated locations.

Ms. Wagner settled out of court with Samaritan's Purse on March 30, 2012, and within a few months the other defendants followed.

Workers comp issues in 'threat-elevated' environments

As stated earlier, employees normally are not eligible to file a claim for workers compensation when they are attacked or kidnapped outside the course and scope of their employment. However, they may indeed have a causative claim if their job requires them to work in a threat-elevated environment. If their employment compels them to work in a higher-risk area and they must take extraordinary chances because of their employment, then liability rules begin to change.

Typical workers compensation coverage does not usually cover these situations, and general liability policies normally contain exclusions for employment-related lawsuits. This means you will not have coverage for the loss, and the defense costs and legal expense will not be covered by your insurance policies. The legal fees alone can become staggering in such cases, and the ensuing media coverage and loss of employee morale could be devastating to an organization's corporate image.

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Dean A. Sipe, an Arizona lawyer specializing in corporate law, offers this advice: “Organizations whose business requires them to send employees or volunteers to hazardous parts of the world should be aware of an evolving standard of care that may impose a duty on them to take reasonable precautions for the safety of such persons placed in harm's way. One way to attempt to meet this standard may be to ensure that employees or volunteers receive training in anti-kidnapping, counter-surveillance awareness, and crucial hostage escape and survival techniques.”

It is clear that organizations can reduce their legal exposure through the implementation of proper education and training programs. The preferred method relies on situational awareness and threat avoidance skills instead of reactive or combative techniques. This training also includes the necessary steps that will allow employees to identify possible threats or threatening individuals, confirm their suspicions, and then make the proper decisions if confronted with potentially dangerous situations.

In the end, it is up to each organization to determine what it considers to be the “duty of care” under the concept of “reasonable care,” and the degree of responsibility and liability it and its owners, board members, and/or upper executives are willing to assume. Having the opportunity to be proactive is always preferable to being forced into a reactive situation — or an expensive lawsuit.

Matt Rix is the director of information for SBS Training Solutions, an Atlanta-based organization that specializes in potential kidnap and attack detection plus avoidance/evasion training. Mr. Rix can be reached at (888) 898-5552 or at mattr@sbstrains.com.