As part of efforts by Congress to overturn various regulations published during the waning days of the Obama administration, the House of Representatives on March 1 passed HJR 83 on a largely party-line vote. The resolution, unlike what we have come to expect in congressional work product, is a model of conciseness:
“That Congress disapproves the rule submitted by the Department of Labor relating to ‘Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness’ (published at 81 Fed. Reg. 91792 (December 19, 2016)), and such rule shall have no force or effect.”
The rule, announced by the Occupational Safety and Health Administration (OSHA), created a continuing obligation to maintain accurate injury and illness records for five years (OSHA 300 Log). The rule also required the accurate filing of Form 301 incident reports throughout the five-year, retention-and-access period if employers do not prepare the report when first required to do so,
HJR83 is a technical way to say that the Dec. 19, 2016 rule will be nullified if the Senate concurs and President Trump signs the legislation. In case there was any doubt, on Feb. 28 the office of the president issued a statement saying, “If this bill were presented to the president in its current form, his advisers would recommend that he sign it into law.”
When the Senate received HJR 83 on March 2, it immediately introduced SJR 27 to accomplish the same purpose and with identical language.
Critics of the regulation felt that it was a last-hour effort to undo the decision of a panel of the U.S. Court of Appeals for the District of Columbia Circuit in AKM LLC (dba Volks Constructors) v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012). In that case, per OSHA’s interpretation, the five-year retention requirement for these injury and illness logs created five years of potential liability for inaccurate record keeping. In other words, there was a continuing duty to maintain the accuracy of the logs. In Volks, however, the court unanimously disagreed with the Department of Labor and decided that there was no such continuing duty. The court held that no citation may be issued after the expiration of six months following the occurrence of any violation, following the general limitation on citations contained in the U.S. Code under the Occupational Safety and Health Act.
OSHA did not challenge the Volks decision. Instead, OSHA pointed to the concurring opinion of Circuit Judge Merrick Garland, who agreed that OSHA’s interpretation was wrong, but because of a lack of regulatory authority and not necessarily a lack of statutory authority. That distinction was enough for the Department of Labor to adopt the challenged regulations, and Garland’s opinion was quoted extensively in the Federal Register by OSHA in support of its actions. Congress, it appears, will be the ultimate arbiter of that issue.
The creation of a continuing duty arguably makes it easier to prove that record keeping violations were willful. That increases the exposure to penalties. While OSHA’s comments in the Federal Register when the regulation was published downplayed the additional obligations of employers in complying with the law, employers and associations expressed concerns about how the “continuing violations” would be managed by employers and enforced by OSHA. These comments suggest that the compliance costs are real and material.
The National Federation of Independent Businesses (NFIB) says the regulation will cost the economy $1.9 billion over five years. OSHA disagreed with that assessment. (Federal Register, Vol. 81, No. 243, p. 91806).
It is important to remember that if Congress doesn’t act and the president does not sign the resolution, the regulation will be in effect.
The bigger picture of how to deal with a wide range of regulations from the Department of Labor, including OSHA, is a much larger topic. There are certainly controversial regulations that must be reviewed by the new nominee for Secretary of Labor, Alex Acosta, once he is confirmed. For the moment, however, this record-keeping rule is on the path of disapproval, much to the relief of employers across the country.
American entrepreneurship is alive and well and growing! There are countless rags-to-riches stories of how people with a good idea, boundless energy and infectious optimism have made it big, or simply made a rewarding livelihood and legacy for themselves and their families. Today’s fintech and insurtech movements are testament to this in spades! And while most national news stories focus on big business, and national cultural events like Black Friday tend to overshadow small businesses, there’s a growing movement embracing these vital contributors to our communities and economy.
The Rise of Small Businesses and the Shop Small Movement
On Nov. 26, 2016, the 7th annual Small Business Saturday event sponsored by American Express and the National Federation of Independent Businesses (NFIB) was held to encourage shopping and patronage of local small business merchants – in the wake of the preceding day’s big box store Black Friday shopping hysteria. According to research done by these organizations after last year’s Small Business Saturday, more than 95 million consumers shopped at small retailer businesses, spending $16.2 billion, up 8% from 2014. Interestingly, the event garnered support from many corporate sponsors – many of which count small businesses as their customers.
Millennials show strong support for local small businesses, indicating they want to be “connected” to the products and businesses they buy from. A study by Edelman Digital showed that 40% of millennials preferred to buy goods and services from local small business retailers, even if doing so cost more.
While Small Business Saturday and Buy Local have a decidedly retail focus to them, the importance of all types of small businesses cannot be overlooked. U.S. Census Bureau figures from 2014 showed that businesses with fewer than 10 employees make up nearly 80% of all firms in the U.S. This is a huge market with enormous needs for products and services, including insurance to keep them running, protected and competitive.
Where’s the Love?
The Rise of the Small-Medium Business Customer research sought to understand small-medium business decision makers’ perceptions and views of those who support and supply them, including insurance. Four hundred business owners were surveyed using the Census Bureau’s definitions of very small to medium-sized businesses (SMBs), which we grouped into three segments (1-9 employees, 10-99 employees and 100-499 employees). The survey provided insights to evaluate perceptions on SMB customer views of insurance as compared with other businesses
The results were enlightening. Interestingly, fair price was more important than lowest price across all of the business segments. However, the ability to create a custom product from a range of options is more important than both lowest price and the ability to pick from a set of “pre-packaged” options. This finding reflects the increasing demand for personalization rather than price-driven mass production of insurance products.
Even more revealing were the results among the smallest (1-9 employees) businesses. The survey highlights that the traditional insurance business model has not been built with the capability to adequately meet the unique needs and expectations of SMBs. The industry has, instead, pursued a “one size fits all” approach. The consequences are that this segment of smallest SMBs (though with the largest number of such businesses) is uninterested in insurance, sees little value in insurance and considers insurance a necessary commodity or “necessary evil” required for their businesses.
All three segments of SMBs, regardless of size, did not rate insurance as being particularly easy to do business with, in terms of researching, buying and servicing products, compared with the other types of businesses we asked about in the survey. Among the 1-9-employee segment, P&C, life and employee benefits ranked in the bottom half on all three of these aspects.
Much more telling, however, this segment gave the lowest Net Promoter Scores (NPS) to insurance, showing a gap of as much as 60 points between insurance and the top business. (Net Promoter Scores measure the likelihood that a customer will make a recommendation to a prospective customer.)
Adding fuel to the fire, these small businesses were the least likely to say insurance was responsive, innovative, had easy to understand products and provided good value for the money. This is not a pretty picture for traditional insurance — but a great opportunity for innovative “greenfields” and startups.
Going Small Requires Big Thinking
Increasingly, small business customers are demanding a personalized and digital experience, representing the shift from mass standardization of insurance to the micro-personalization of insurance, requiring broader data and sophisticated analytics to truly understand and respond to small businesses as well as a digital experience via a multi-channel approach.
The rapid emergence of digital direct-to-SMB insurers and MGAs such as Assurestart (now part of Homesite/American Family), Cover Your Business.Com (a Berkshire Hathaway company), Hiscox, Insureon, Bolt, Slice and others are leveraging these ideas to reach the small business market. They are providing innovative products, streamlined and simple processes and digitally engaging capabilities that are extending the direct business model to SMB customers. In addition, aggregators, comparison sites or new distribution channels like Ask Kodiak help small businesses find the insurance products they need more easily.
Our research identified gaps between many industry-held perceptions and customer-defined realities, which expose an insurance industry steeped in tradition — its business models, business processes, channels and products that are difficult to find, buy and service — and opens the door to new competitors. We have seen this play out before with personal lines over the last 10 to 15 years. The difference is that the pace of change and adoption of a digital play is unfolding more rapidly this time in commercial insurance, demanding that insurers respond, because the window of opportunity is smaller.
Each company serving the SMB market must itself strategic questions, such as: “How do we bridge between the past, today and the future? How do we keep current customers loyal and engaged as we redefine our business to meet the needs of the vastly underserved and growing small business market? How do we get on par with other digital businesses that are setting new expectations for the SMB market?” If traditional insurers don’t ask these questions and respond, others will – taking current and future market share.
Small businesses today are at the forefront of building new, technology-enabled, digitally first, innovative businesses that operate in a multi-channel world … like what we are seeing in insurtech. These businesses are increasingly led by millennials who have “grown up” digital and, as a result, seek fresh alternatives to age-old formulas … especially for insurance needs and offerings, helping them effectively meet their unique needs and expectations. It’s time for the insurance industry to translate the good will from the Buy Local and Shop Small movements into big thinking and innovative solutions.
A new generation of small business insurance buyers with new needs and expectations create both a challenge and an opportunity. There is no clear path or destination. The time for plans, preparation, and execution is now — recognizing that the SMB customer is in control. Those who recognize and rapidly respond to this shift will thrive in an increasingly competitive industry to become the new leaders of a re-imagined insurance business that aligns to a rapidly growing, millennial-owned, innovative SMB marketplace. Insurance companies must stop talking about the opportunities and being digital, and start doing something about it by using the disruption and change as a catalyst for “real change.”