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From the Editor
"Ask an Expert" Briefs
Do all agency employees need employment contracts? How can you create enforceable noncompete or nonpiracy agreements? Are producers employees or independent contractors? What do you do if a producer leaves...with YOUR accounts? These and other questions will be answered by the articles in this section of the VU research library.
People who know this industry and its contracts extremely well can help establish the contractual framework that includes real world knowledge of how various contracts need to work. For example, almost no producer contracts I have read, written by attorneys with limited insurance agency knowledge (about 95% of attorneys), know the proper wording for producer compensation agreements. This little item has significant legal and financial importance.
Insurance Company Agency Agreement Language That Could Drain Your Agency Assets
Insurance company agency agreement wording for both Property Casualty agents and Group Health agents require unequivocal compliance with all current state and federal privacy and data breach response laws. Failure to do so puts the agency in potential breach of contract and liable for all claims incurred by the insurance company under the indemnification clause in their agreement. This could cause serious financial harm for most agencies and agency owners.
Agency Contract Review
Warning: This article is NOT about 'agency contracts,' but rather about the practice (or lack thereof) of the agency reviewing the coverage implications of contracts entered into by insureds. We're categorizing this as an agency management, rather than a coverage, issue since procedures need to be in place for carrying out this often requested task.
Agency Employee Moonlighting
Citing tough economic times, an agency producer has ventured into a multi-level marketing operation and has sold energy conservation devices to several existing agency customers. The agency owner is concerned on many levels, not the least being the agency's potential liability for one of these defective products. How should this situation be handled?
Are Producers Independent Contractors or Employees?
This question comes up frequently with respect to payroll taxes, to benefits programs and to workers compensation rules. This is obviously an important issue, the results of which can cause state and IRS problems that can haunt you for a long time. The determination of status as an employee or contractor is not one of convenience or money-saving efforts. It is one of law and you must consider these guidelines carefully before designating people to either category.
Employment Agreement Do's and Don'ts
An Employment Agreement protects both the employee and the agency. Owners would be wise to re-negotiate Employment Agreements with existing and/or new employees, with a legitimate form of consideration to sponsor that agreement (avoiding any whiff of coercion).
Geographic Non-Compete Agreements
A Non-Compete Agreement that contains geographic wording is like a rancher telling a cowboy that if he can’t work for the rancher, he also must move to another geographic area to ply his trade. The courts generally say that a business cannot stop a worker from plying his trade where he lives and works. Fortunately, there are workarounds to make your non-competes hold up.
How to Create Enforceable Non-Compete Agreements
It is unfortunate that the majority of agencies still do not have Non-Compete and Non-Piracy Agreements with producers and other key employees. Three things can happen without these agreements...and two of them are bad. In this article, we'll distinguish between these two types of employment contracts and explain what they should include and why.
NonCompete Agreements and Protective Covenants
Many people think restrictive covenants are used primarily to restrict producers from stealing agency information. I feel it is imperative for you to have some sort of written confidentiality agreements in place with all employees. The new laws make it almost mandatory to do so. For the purpose of this article I will limit my comments to covenants with producers and you can use this information to extend the principle to all of your employees.
Producer Non-Piracy Agreements
Every agency should have a contract with every producer. Every contract should include a clause that governs the solicitation of accounts if the producer leaves the agency. Unfortunately, too many agencies either don't have such contract provisions or the ones in place are legally unenforceable. In this article, we explain the difference between non-compete, non-piracy and non-solicitation agreements, including a sample contract that was upheld by a state supreme court.
Producers: Independent Contractors or Employees?
Producers often work for the agency with a lot of independence. Does that make them independent contractors rather than employees? What if they're paid as 1099 workers rather than receiving W2s? Obviously, their employment status can affect how they're viewed by the IRS and your state labor department with regard to workers compensation coverage.
The Importance of Employment Contracts
Agency employment contracts, particularly with producers, can prove to be critical when trying to resolve problems involving commissions, termination, account ownership, and similar disputes. The existence of such contracts can benefit both the agency and the employee. In this article, we'll give you an example of how an employment contract (or lack thereof) governed a situation where an agency felt it had to reduce commissions to producers.
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