I’ve been trying to find time to write about the big ongoing question about adjuster overtime pay and a related issue on the commonly asked question ” am I an independent or am I an employee”. The new suit brought by two AIG adjusters in September 2007 again brings this topic to the forefront and we’ll watch this case to see if anything new develops to help us understand these issues. We would appreciate any comments by employment attorneys to help us clarify these issues. Today we will provide information on the overtime issue and tomorrow we’ll blog about the Independent adjuster vs employee questions which we are frequently asked about by adjusters when signing independent adjusting firm contracts.
Here is a link to the news article about the AIG adjusters new suit. Here is also a link to the Bloomberg article on this new suit.It’s not just carrier staff adjusters and employees filing these suits as this article shows adjusting firms are the subject of such suits also in this article saying Pilot Catastrophe Services also received a Complaint in 2004. I’d like to know how the adjusting firm case was resolved but could find no information on the web about the outcome of the case.
“Insurance claims adjusters are still exempt from federal overtime requirements under the United States’ Department of Labor, Wage and Hour Division’s final version of the controversial changes to the white collar exemption regulations. As requested by the American Association of Independent Claims Professionals (AAICP), an association of independent claims adjusting companies, the Labor Department specifically noted in the new regulations that claims adjusters are generally exempt from overtime pay requirements regardless of what kind of company they may work for – an insurance company or an independent. The new regulations also make some adjustments to exempt salary requirements that may affect claims adjusters, including raising the minimum exempt salary and creating a new pseudo-presumption of exempt status for higher wage-earners.”
Here is more important information in this article:
“As requested by the AAICP, the new regulations specifically use insurance claims adjusters as an example of an exempt administrative employee:
Insurance claims adjusters generally meet the duties requirements for the administrative exemption, whether they work for an insurance company or other type of company , if their duties include activities such as interviewing insureds, witnesses and physicians; inspecting property damage; reviewing factual information to prepare damage estimates; evaluating and making recommendations regarding coverage of claims; determining liability and total value of a claim; negotiating settlements; and making recommendations regarding litigation. ”
Please read the full article for other important details.
Here is another article from the AFL CIO which specifically addresses insurance adjusters and overtime issues which concurs with the article from AAICP stating in part:
“Insurance claims adjusters—Again, court cases on whether insurance claims employees receive overtime pay have gone both ways—some courts have said they are exempt and other have said they should receive overtime pay. This is a very heavily-litigated field, and corporations have not been able to win a blanket victory. The Bush Administration has handed them that victory by changing the nationwide regulation to specify that these employees are generally disqualified from receiving overtime pay. (New Section 541.203(a)) A quarter of insurance claims adjusters make less than $35,000 a year. “
In a more recent case involving Farmers, White and Case provides this analysis of an overtime case in multiple states in this February 2007 article on Farmers prevailing in a case on the claim adjuster overtime issues. Here is the link to their article.
One of the most excellent articles I could find (here)is from Holland and Knight in December 2006 which addresses the duties of adjusters who alleged use of computer estimating systems and claim manual among other things took away their individual judgment thus they were entitled to overtime pay. Some important comments in this article include:
“The Farmers claims adjusters asserted that they were not exempt from the overtime pay requirements because the work that they performed was part of the “production” side of the business, not the “administrative” side. They also argued that because they had to follow claims manuals and guidelines, and use computer programs to determine loss values, they did not exercise sufficient “discretion” and “independent judgment” to fall within the exemption.The trial court found that all of the claims adjusters were doing “administrative” work; that is, that their role was on the administrative side of the business, not the “production” side. In addition, the trial court found that most of the claims adjusters used a sufficient amount of discretion and independent judgment in their work to qualify for the exemption. However, the trial court found that some claims adjusters, such as automobile adjusters and adjusters who mostly handled claims less than $3,000, had to follow so many guidelines and rules that they did not exercise an adequate amount of discretion and independent judgment to meet the exemption”.
I found this article addressing the size of the claim particularly interesting in light of all of the claim central operations handling smaller losses.
Here is another good article by the Jackson Lewis firm from November 2006 outlining more duties of adjusters and providing more information on the Ninth Circuit ruling that claims adjusters are exempt from overtime pay while noting that CA courts reached opposite conclusions. This brings us to this September 19, 2007 article here by National Underwriters discussing some recent CALIFORNIA cases where Allstate, State Farm, and Farmers agreed to pay millions on other cases out there. Is this because they are cases in CA subject to other laws or is it because of overtime regulation interpretations prior to the new overtime rules of the Federal Labor Standards Act?
This MSNBC article here from August 2004 explains what changed with the new overtime regulations when they went into force. I’m not an employment attorney so I am not sure of the answer to this question as to why some carriers were settling these cases but it may be due to the regulations in CA differing as an article addessing several CA cases settled by carriers in Los Angeles Business Journal explains here.
Here is an interesting article from October 2006 by CFO.com indicating the 2004 update to the FLSA has increased the confusion on overtime pay and the number of suits filed. Particularly interesting on page 3 of this article is the list of FLSA auditor “red flags” indicating things they look for to see if a firm is in violation of overtime issues such as having all employees on salary versus some time card employees. Adjusting firms should read this article.
The bottom line in all of these articles seems to verify that adjusters are not entitled to overtime pay with the exception of CA (see this 2nd article here from Holland Knight on CA regs opposed to Federal regs) . I’d make sure your adjusting firm is compliant on these issues especially during catastrophe operations when many firms are working employees at the required carrier hours of 7am-7pm 6 or 7 days per week. Check with your employment attorney to verify you have your firm properly classifying your employees and adjusters. There are many new in office programs adjusting firms are participating in such as running call centers, using an increased number of adjusters in claim central operations at carrier catastrophe centers, running additional living expense and contents claim units from their adjusting firm home offices or field catastrophe centers.
Due to the increased number of suits as a result of the new 2004 FLSA decisions as indicated in these articles, it appears wise to get a legal opinion on your overtime decisions BEFORE your firm is subject to such a complaint. Review of this Department of Labor article found here says it best:
“The status of an insurance claims adjuster, however, does not rely on the “claims adjuster” job title alone. There must be a case-by-case assessment to determine whether the employee’s duties meet the requirements for exemption. “
In my earlier years as a staff adjuster, we were never paid overtime pay except when moved to “time card” status while attending claim schools as they advised us training status required overtime pay while normal work did not. We were never paid overtime as claim managers in line field units, claim central operations, or while serving as catastrophe claim managers working 7 days per week 12 hours per day. In more recent years when performing temporary catastrophe management duties with independent adjusting firms, they also paid us on salary with no overtime. I can assure you in both staff and independent positions that adjusters normally work far beyond a 40 hour work week to keep up with carrier performance guidelines and Department of Insurance mandated deadlines during catastrophes. This 28 year carrier career was all prior to 2002 with the independent experiences from 2003 to the present.
I am curious what adjusters today (after the 2004 changes) are experiencing on these salary, time card, and overtime issues and hope to hear from many of you in reply to this blog. Please list your position, your state of employment, your carrier or adjusting firm, and your method of pay both for regular 40 hours and overtime. Should you not wish to comment in the blog, you can send emails to us and I can post your input anonymously in reply to this blog. We’ll also post this in our forums at ClaimSmentor for continuing ongoing discussions with our members.