requiring sales people to use company iphones with location tracker / waiving additional insured / Free Webinar September 13, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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requiring sales people to use company iphones with location tracker / waiving additional insured / Free Webinar
September 13, 2018
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Special Notice of Free Webinar September 18, 12 to 1 PM for New York businesses - sexual harassment training seminar 
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    For those who haven't heard, prior to January 1, 2019  ALL NY EMPLOYERS must train all employees on Sexual Harassment.  New York DOL has put out a simple overview available here, which also contains simple sample policies -
https://www.ny.gov/programs/combating-sexual-harassment-workplace.  
    The draft policies provided by the state are template and do not contain the legally required complaint form.   
    What's involved: disseminating somewhat specific paperwork, setting up reporting procedures and actually holding a training.  
    If you prefer the customized policies or for us to help with training, contact Taryn at (516) 747-6700 x. 310 or by email at TCrimi@Kirschenbaumesq.com.  
    Join Kirschenbaum & Kirschenbaum's Employment Law Department on Tuesday, September 18, 2018 at 12 to 1 PM  for a Webinar on how to train.  We also will discuss how K&K is available to train by webinar or in person on this topic.  
Register here -  https://attendee.gotowebinar.com/register/5764510059886011139   
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Free Webinar:  September 27, 2018. 12 to 1 PM EST.    Round table discussion on preparing your company for sale [we may get to buying considerations too].  Business brokers and consultants will join the discussion.  Mitch Reitman, Robert Shoremount, Barry Epstein and Rory Russell are our Round Table Experts.  Join us by reserving your spot:  Click here:  https://attendee.gotowebinar.com/register/597273801145255682
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requiring sales people to use company iphones with location tracker
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Ken
    I really appreciate the articles we get from you they have been very helpful.  I have a question,  we provide iphones to all our employees.  We ask them to keep the location turned on and share their location with us.   We haven’t had any issues except one employee who says it is an invasion of his privacy and seems invasive that we would ask employees to share locations.    This is a sales person who also refuses to use the company phone he only carries it with him and has all our customers call him on his personal cell.    I didn’t know if you have had this question before or if it was maybe part of an article you have sent out before,  Your insight would be so helpful  I have never had anyone have issues before this employee. 
Thank you
name withheld
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Response
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    This is more of a nightmare than you realize.  This single insubordinate employee could cause lots of trouble.  I am going to assume you are in an "at will" state, which means you can terminate employment at any time for any or no reason, except for certain protected classes.  
    Tracking the location of a sales person is particularly important when there are assigned territories and designated work hours.  There could also be overlapping if several sales people are canvassing the same neighborhood.  There are enough reasons to justify the cell phone use and tracking the employee.
    You should send notice to all employees reminding them of the requirement.  You should then write up the employee for failing to use the phone on tracking.  Be sure to let the employee know of the write up.  Next day, same thing.  Third day, fire the employee.  When the unemployment papers come, object.  This employee was terminated for cause and properly.
    If you have termination policies established by union contracts, employment agreement or company handbook, be sure to follow those procedure for termination.
    What if you don't want to fire the employee?  Maybe this sales person is the best of the best and you are willing to let the tail wag the dog.  That's your perogative; just be careful that you haven't started down a slippery slope and you end up at the bottom.  An employee like this can end up causing more trouble then he or she is worth and disrupt your operation before you finally cut him or her loose.
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waiving additional insured
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Ken
    We have had our first customer ever ask us to strike the additional insured in your Residential All in One.   It’s a residential sale.    If there anything we can add or is it ok to just strike that line?  How much do we open ourselves striking that?
Matt
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Response
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    Let's say that's the only challenge the subscriber makes to the contract.  Take it out.  It's not the entire line, it's a few words adding you as additional insured.  Leave the rest of the paragraph.
    Adding you as an additional insured would prevent the subscriber's insurance carrier from suing you in subrogation.  However, there are other provisions in the contract that will prevent a subrogation action.
    Your subscriber will quickly realize the mistake of not adding you as an additional insured if a claim is brought against you, by the subscriber or third party, and you demand indemnity from the subscriber.  The subscriber may find himself without insurance coverage on the indemnity claim and will therefore be out of pocket for defending and paying the claim. In the event the subscriber's pockets are not deep enough for the claim then you may regret not have the added insurance coverage if you are exposed on the claim.  
    I would assess the risk of omitting the provision minimal.  You have to determine if the subscriber is worth taking the added, though minimal increased risk.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com