Questions on Professional Liability

Email from historians' group sparks debate about individual liability insurance offered by professional associations and whether faculty members need this kind of coverage.

August 23, 2016

Networking, subscriptions to journals, the opportunity to present at and attend conferences -- membership in a professional association offers lots of benefits. But should access to third-party liability insurance be one of them?

A recent set of emails from the Organization of American Historians, or OAH, offering such insurance startled at least a few members, who started asking questions about what exactly the product was and who needed it. Aren’t professors covered by their institutions, they asked?

“When it comes with the imprint of the OAH itself and is sent out in an at least official-appearing email to members, that sends mixed messages about how you should be thinking about this issue and using your time,” said Andrew Urban, an assistant professor of American studies and history at Rutgers University at New Brunswick. “Should you be involved in and working with your university to increase protections for, say, adjuncts, or should you just cover your own ass, for lack of a better term?”

Urban added, “Then there are additional questions about whether this provides anything of value."

The email in question advertises “triple-threat protection” for “work-related errors and omissions” of up to $1 million; “job protection benefits” of up to $5,200 for legal advice and representation to appeal an unfavorable job change or dismissal; and criminal defense support of up to $50,000 for charges including sex assault -- provided you’re found not guilty. (Protection from civil claims is offered regardless of the outcome.)

Plans are available to full- and part-time and student employees, and start at about $9 per month, according to Forrest T. Jones and Company, which administers them. Sample claims include a teacher being sued for alleged lack of supervision in class that resulted in a student’s injury, an administrator challenging a professor’s tenure recommendation and a professor accused of unfairly putting a student on academic probation that resulted in the student’s dismissal.

Who would need such insurance? Any educator, according to Forrest T. Jones. The insurer says getting individual liability coverage is a matter of interests -- the insured and the institution’s, which don’t always align -- as well as an additional safety net.

“While most likely your district will have liability insurance, this policy must protect the district, school board members, trustees, administrators and teachers and must defend everything from their student admissions policies to their employment practices,” product information says. “If the district's policy is not broad enough -- or exhausts its liability limits -- you may find yourself personally and financially liable for alleged actions or inactions.”

It’s true that institutions are loyal first and foremost to themselves. But time and again they’ve taken the financial fall for employees accused of everything from malpractice to assault. That’s because they’re generally liable for work-related claims against employees and -- because they’re typically much richer than their employees -- nearly always named as defendants or co-defendants in civil suits.

Katherine Finley, executive director of the OAH, said individual liability is one of the many insurance products offered by the Trust for Insuring Educators, to which the OAH belongs. Historians’ uptake on the liability product is relatively low -- just about 48 of OAH’s members 7,500 have enrolled, Finley said -- and more popular with K-12 teachers than college and university ones. But it holds value for those who want it, she added. (The OAH is distinct from the American Historical Association, which does not offer individual liability plans.)

“Although a large number of our members do work at universities and colleges, we also have a growing number of adjuncts/part-time, high school teachers, and those working totally outside the academy who don't have the benefit of quality, low-cost insurance programs,” she said via email. “We have continued to offer this because some of our members (especially those not associated with the university) may not have one or all of the products they offer.”

Does OAH profit off of these plans? Finley said some associations do make money on them but that no one in the trust profits significantly, in order to keep costs low for members. The trust this year started giving 5 cents per insurance marketing email sent, amounting to about $50 for OAH, she said.

While OAH’s recent emails caused some chatter among historians, it’s not the only professional organization to offer its members this kind of insurance. The National Council of Teachers of English, also a member of the trust, recently sent its members information on the same plans from Forrest T. Jones. Like OAH, the council offers other insurance products in addition to individual liability, such as life and health plans.

Unions often offer this kind of insurance, as well. The American Association of University Professors offers its members liability coverage, though the association’s Institutional Responsibility for Legal Demands on Faculty statement recommends that colleges and universities adopt their own “comprehensive general policy on legal representation and indemnification for members of their faculties.”

That statement, last updated in 1998, notes an uptick in legal challenges against faculty members, and it’s safe to say that the trend has continued in the years since. New responsibilities continue to arise from recent interpretations of Title IX of the Education Amendments of 1972, which prevents gender-based discrimination in higher education, for example.

So is individual liability insurance worth it?

Brett Sokolow, an expert on campus legal issues and executive director of the Association of Title IX Administrators, said it is “facile to dismiss such insurance as a racket, but it all depends on the nature of the coverage and the peace of mind it may afford.” Those considering it might ask how well protected they are by their specific employers, which might vary from institution to institution and from private to public ones in particular -- as well as a series of other questions.

“Are the employee’s interests coextensive with their employer’s?” he asked. “Might the employee be scapegoated or let go by their employer once a suit is filed, in which case their interests are rather divergent? Do they want to be defended by the institution’s counsel or insurer, or have their own?”

Sokolow also cautioned that taking on additional liability coverage could make a university employee a target in a lawsuit. “If an administrator is of modest means and assets, they might not be worth suing,” he said. “If they have $500,000 in insurance, suddenly they are worth suing.”

Robb Jones, senior vice president at United Educators, which writes university insurance policies, also said individual liability could expose someone to liability risks. At the same time, he said, there’s nothing “nefarious” about such policies, and that they can do some good.

For example, Jones said, employee indemnification polices vary from state to state -- meaning institutions aren’t always responsible for faculty members. Many university-specific insurance policies say nothing about protecting employees from criminal claims, he added, and conflicts can arise between professors and their administrations when it’s alleged that faculty conduct and professional polices were not followed.

Jones also said that sometimes employees’ home owners’ insurance might cover slander or libel, but that these policies are often more narrow than specific liability products. Ultimately, he said, the question is one of comfort, kind of like automobile insurance. “Some people get the state’s required minimum, and others get $500,000.”

Maria Maisto, president of the New Faculty Majority, a national adjunct advocacy organization, said she thinks individual liability is primarily a marketing strategy by which professional associations and unions attempt to lure members who think they need it.

On the other hand -- and to Urban’s original concerns about adjuncts and, more generally, what the availability of such products signals about the state of faculty rights -- Maisto said the issue raises a question often raised by semester-to-semester adjuncts when they try to make use of institutional grievance procedures.

“If you are basically unemployed at the end of each term, are you covered by the school’s policies once your employment with them ends?” she asked. “I’d think each adjunct should check their institution’s policies to find out whether or how they are covered.”


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