LEGAL RESPONSIBILITIES AND RISK MANAGEMENT

National Apartment Association Education InstituteCertified Apartment Property Supervisor

HOUSEKEEPING

Restrooms Breaks Lunch Cellular Phones Smoking

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INTRODUCTIONS

Name Company Number of Units How Many Years In

the Business Two sentences about

what you think about Law and Risk in your job

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GROUND RULES

Participate fully.

Help us stay on track.

Have fun.

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LEARNING OUTCOMES: LEGAL RESPONSIBILITIES AND RISK

• Apartment Communities and the Law

• Hiring Employees Lawfully• Establishing Workplace

Guidelines• Counseling, Disciplining, and

Terminating Employees• Ensuring Workplace Health and

Safety• Observing Rental Laws• Maintaining Habitable Properties • Working with Contractors and

Contracts • Managing Risk• Current Legal Trends

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2. APARTMENT COMMUNITIES AND THE LAW

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LAWS AND LEGAL OBLIGATIONS

Laws exist to protect people’s rights. As a multi-property supervisor, you need to be aware of those rights for employees and residents—and see that the community management teams comply with the rule and the spirit of the law.

Failure to follow local, state, and federal laws can potentially put the company and the properties into serious legal jeopardy.

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FAIR CREDIT REPORTING ACT (FCRA)

When conducting background checks on employees or applicants, you must notify them and get their permission to obtain a credit report.

If the employee or applicant is not hired based on something in his or her report, you must provide the contact information for the Credit

Reporting Agency, and a Statement of FCRA Rights

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FAIR AND ACCURATE CREDIT TRANSACTION ACT (FACTA)

Extends the FCRA Addresses consumer

concerns about identity theft Addresses in more depth the

procedure for inaccuracies in consumer reports

Gives the consumer the right to restrict how businesses use their non-public personal information

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TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED

In all stages of employment you may not discriminate based on:

Race Color Religion Sex National origin

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AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA)

Prohibits employment discrimination to applicants or employees who are 40 or older

Applies to employers with 20 or more employees

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TITLE I OF THE AMERICANS WITH DISABILITIES ACT (ADA)

Prohibits employment discrimination against disabled applicants or employees who can perform the essential functions of the job, with or without reasonable accommodation

Applies to employers with 15 or more employees

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FAIR LABOR STANDARDS ACT (FLSA)

Sets requirements for minimum wage and overtime eligibility

Regulates child labor Applies to employers with 2 or more

employees

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EQUAL PAY ACT

Requires employers to pay equal wages to male and female employees who perform similar work (equal skill, effort, responsibility)

Applies to employers with 2 or more employees

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FAMILY MEDICAL LEAVE ACT (FMLA)

Requires employers to grant up to 12 weeks of unpaid leave during a 12-month period for: Birth or adoption Employee’s serious

health condition To care for a parent,

spouse, or child with a serious health condition

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OCCUPATIONAL SAFETY AND HEALTH ACT(OSHA)

Requires employers to have a safety program to protect employees from hazards

Requires information to be accessible to employees about hazardous materials they may use

Requires periodic safety training

Requires documentation of workplace injuries

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IMMIGRATION REFORM AND CONTROL ACT(IRCA)

Prohibits employment discrimination based on national origin or citizenship status

Requires the processing of an I-9 form to prevent the hiring of illegal aliens

Applies to employers with 3 or more employees

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NATIONAL LABOR RELATIONS ACT (NLRA)

Regulates the labor management relationship

Prohibits discrimination based on union activity

Applies to private sector employers that have an impact on interstate commerce

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UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA)

Prohibits employment discrimination because of an applicant’s or employee’s military obligations

Requires employers to reinstate employees to their former jobs after honorably completing military duty

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JURY SYSTEMS IMPROVEMENT ACT Prohibits an employer from

disciplining or terminating an employee for being called to serve on a federal jury

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EMPLOYMENT POLYGRAPH PROTECTION ACT

Prohibits employers from requiring applicants to submit to a polygraph exam

Applies to private sector employers except: Security firms, and Pharmaceutical manufacturers, distributors and

dispensers

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FEDERAL POSTING REQUIREMENTS

Notices about federal laws must be posted where employees can see them such as: Near time clocks In break rooms In designated department

locations Some states require notices

to be in more than one language (e.g., Spanish) so be aware of your state’s requirement.

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WHAT IS NEGLIGENCE?

Management was legally responsible for the “control area” failed to repair the “system and/or property

damage” or a problem that caused the injury. knew or should have known that an accident

was likely to happen in the area. could have sharply reduced the chances of an

accident with reasonable attention to the maintenance or repair problem.

Negligence is governed by Common Law

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ACTIVITY: WHAT IS YOUR EXPERIENCE?

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3. HIRING EMPLOYEES LAWFULLY

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JOB DESCRIPTIONS

List core tasks and accountabilities for the job.

Maintain objectivity and provide a useful standard by which to fairly evaluate all candidates who apply.

Strong legal defense tool Resources for writing job descriptions:

www.naahq.org www.shrm.org

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BACKGROUND CHECKS

References Credit Checks Driving Records Criminal History Employment Eligibility (Legal to Work in

the United States) Skills Testing Drug Testing (after conditional offer) Medical Exams (after conditional offer)

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CONTACTING PAST EMPLOYERS

Offer to send the applicant’s signed consent to a full disclosure of employment information

Typical Questions: What are the applicant’s greatest

strengths? What are his or her greatest opportunities? Would you hire this person again?

Confirm salary, title, dates of employment

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INTERVIEWING

Prepare questions in advance Use only acceptable questions! Ask all applicants the same questions

(use of an interview guide is recommended)

Ask only job related questions Keep application forms and

employment records for at least one year

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WHEN EXTENDING CONDITIONAL OFFERS, Restate the “at will” employment

relationship. Give a written list of job duties. Give a written offer of pay and benefits. Refer to the employee handbook that

includes company policies. Provide a document for the employee

to sign and accept the job offer.

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“AT WILL” MEANS…

The employee works at the will of the employer.

The employer can terminate the employee at any time for any reason, or for no reason at all (but not for discriminatory reasons).

The employee is free to quit at any time.

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ACTIVITY: WHAT IS YOUR EXPERIENCE WITH HIRING EMPLOYEES?

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4. ESTABLISHING WORKPLACE GUIDELINES

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COMPLYING WITH FLSA

Minimum Wage – know the current federal and state minimum wage

Overtime - Covered non-exempt employees must receive overtime pay for all hours worked in excess of 40 hours per week

Recordkeeping – Keep employee time and pay records. Display posters outlining the requirements

of the FLSA - federal and state labor posters as well.

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ESTABLISHING CLEAR AND LEGAL RULES Setting High Standards Maintaining a Drug-Free Workplace Maintaining a Harassment-Free

Workplace Use an Employee Handbook to

Further Outline These Policies

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SUGGESTED EMPLOYEE HANDBOOK TOPICS

Introduction Hours Pay and Salaries Benefits Drug and Alcohol

Abuse Harassment Attendance

Discipline Employee Safety Smoking Complaints Workplace civility Conduct not covered

by the handbook

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NEW EMPLOYEE ORIENTATION

Company culture and history

How the company (or apartment community) is organized, in terms of work teams and functions

Workplace rules Health and safety rules Pay and benefits Work schedules And anything else relevant

to working in the community

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WHY CONDUCT PERFORMANCE REVIEWS? Employees will know what you expect of them

and will receive feedback on their work. You can recognize and reward good employees You can identify and coach workers who are

having trouble. You will stay in touch with the needs, concerns,

and problems of employees. You can identify potential problems earlier. Performance reviews can help keep future legal

problems to a minimum by helping track and document employee issues.

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ACTIVITY: DISCUSS EXPERIENCES WITH WORKPLACE RULES

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5. COUNSELING, DISCIPLINING, & TERMINATING

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TOPICS TO INCLUDE IN A COUNSELING MEETING

Your expectations of how the job should be performed

How the employee is currently performing

Critical element(s) where the employee is failing or falling short

What the employee must do to bring performance to an acceptable level

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SAMPLE PROGRESSIVE DISCIPLINE

First Violation – Verbal Warning

Third Violation – Suspension or Probation

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SEVEN STEPS - DISCIPLINING EMPLOYEES1. Gather Information

2. Assess the Severity

3. Decide How to Respond

4. Prepare to Talk to the Employee

5. Meet with the Employee

6. Document

7. Follow-Up

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TERMINATING EMPLOYEES

Provide a private office or area. Include a peer as a witness to the meeting. Have the final paycheck prepared in

advance, including any benefits, vacation, or severance pay if required by state law.

Keep accurate and detailed documentation of the termination meeting.

Represent the company in a professional, ethical, and honest manner.

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ACTIVITY: DISCUSS YOUR EXPERIENCE WITH COUNSELING AND TERMINATING EMPLOYEES

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6. ENSURING WORKPLACE HEALTH AND SAFETY

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HAZARD COMMUNICATION STANDARD

This protocol must educate

employees on: Hazardous

chemicals they work with

How to use them properly

How to avoid potential accidents or injuries

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HAZARD COMMUNICATION STANDARD COMPLIANCE

• Hazard Evaluation• Labeling• Material Safety

Data Sheets (MSDS)

• Written Plan• Training Programs

MSDS

Material Safety Data Sheets-IdentificationHazardous Ingredients or ComponentsPhysical and Chemicals CharacteristicsFire and Explosion HazardReactivity DataHealth Hazard DataSpill or Leak ProceduresSpecial ProtectionSpecial Precautions 49

LOCKOUT/TAGOUT PROCEDURES

Must be a written procedure

Must be accessible to employees at all times

Must establish contractor responsibilities

Must establish annual auditing procedures

Must establish an inventory of hazardous energy sources and procedures to de-energize them

Must provide for training and retraining

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POTENTIAL HAZARDOUS ENERGY SOURCES

Electrical Hydraulic Pneumatic Chemical Mechanical Thermal

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BLOODBORNE PATHOGEN STANDARD

OSHA’s exposure control program for dealing with the

control of bloodborne pathogens in the workplace, including

Hepatitis B Virus (HBV) and the Human Immune Deficiency Virus

(HIV)

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EXPOSURE CONTROL PLAN

Must be written Must include

exposure determination

Must have procedure for post exposure evaluation and follow-up

Must be trained to employees

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Personal Protective Equipment

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PERSONAL PROTECTIVE EQUIPMENT

OSHA requires the use of Personal Protective Equipment (PPE) to reduce exposure to

hazards in the workplace.Items such as:

Goggles & Safety GlassesGloves & Foot ProtectionHearing ProtectionRespirators & Dust MasksPersonal Fall ProtectionAprons Hard Hats and Face Shields

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ELECTRICAL SAFETY TRAINING PROGRAM

Employers must have a written training program for employees who

perform electrical service and maintenance on the property,

including those who assist with the work.

This includes minor electrical repair and maintenance tasks, such as

changing ballasts in overhead lights or replacing simple switches.

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OSHA INSPECTIONS

OSHA Can: Inspect and investigate any facility,

equipment, and records mandated by the regulations

Interview and observe personnel Observe areas that aren’t covered by

the employer’s consent or the inspection.

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OSHA RECORDKEEPING

Injury and illness records for the past five years.

All written programs outlined.

OSHA Form 300A posted annually.

OSHA poster displayed. Documentation of all

training and written assessments.

Medical and exposure records.

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EMPLOYEE SAFETY BEYOND THE LAW Speedy deposit of checks

and money orders “No Cash Accepted” sign in

the rental office. Review personal safety

policies and procedures at staff meetings.

Use cell phones, walkie-talkies, or a two-way radio system to stay in contact with the office or other staff members.

Keep the entrance to an apartment home open during a showing.

Bring someone along when showing an apartment late in the business day or when dark.

Carry a small alarm device, such as a whistle or clip-on siren.

Work on empty apartments only during the day unless accompanied by someone else.

When the resident is not home, lock the apartment while performing maintenance or repairs. Do the same in vacant apartments.

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ACTIVITY: DISCUSS YOUR EXPERIENCE WITH EMPLOYEE SAFETY

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7. OBSERVING RENTAL LAWS

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RENTAL LAWS AFFECTING MULTIFAMILY

Rental Process Applicable Law(s)

Marketing and Advertising • Fair Housing Consumer Protection

Screening and Applications Fair Housing Consumer Protection

Fair Credit

Leases Contract Law Employment

Fair Housing Landlord/Tenant Law

Maintenance Contract Law Employment

Fair Housing EPA and OSHA

Termination Lease agreements

Fair Housing Landlord/Tenant Law

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COMPLYING WITH THE FAIR HOUSING ACT A fair housing policy that describes its fair

housing practices, including any requirements relating to occupancy guidelines, income, and credit and rental histories.

Include state, county and city compliance laws as well.

All policies must be clearly displayed in the business office

Training and re-training for all staff members must occur.

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PROACTIVE FAIR HOUSING

Display Fair Housing posters where they can be seen easily by prospective renters and residents. The minimum size required by law is 11” x 14”.

Train employees on the Fair Housing Act when they begin their employment with the company.

Provide refresher training on an annual basis. Monitor employee compliance by using

“mystery” shoppers.

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RENTING TO PERSONS WITH DIABILITIES

Under the Fair Housing Act, people with disabilities are promised "equal

enjoyment of housing." That means they can ask for reasonable modifications and

accommodations to give them equal accessibility to all features and benefits of the rental community and its policies.

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WHAT IS A DISABILITY?

According to the Fair Housing Act, an individual has a disability if he or she has a condition that substantially limits one or more major life activities. These conditions include but are not limited to:

Physical, visual, hearing, or mobility impairments

Alcoholism Mental illness AIDS or AIDS-related complex

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REASONABLE ACCOMMODATIONS & MODIFICATIONS

Examples of Reasonable Accommodations Allowing a service or therapy animal to live in a

community with a “no pets” policy Reminding a person with a developmental disability

that the rent is due the next day Providing a sign language interpreter for meeting a

resident who has a hearing impairmentExamples of Reasonable Modifications Installing a ramp Installing grab bars in the bathroom Widening doorways

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MULTIFAMILY HOUSING POST 1991

If your multifamily housing was first occupied after March 13, 1991, It must comply with these seven design requirements for new construction:Wheelchair accessible entrances on an accessible route

Switches, outlets, and environmental controls at specific heights

Accessible public and common use areas

Usable kitchens and bathrooms

Usable doors Bathroom walls reinforced for grab bar installation

Accessible routes into and within the dwelling

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HANDLING EVICTIONS – TYPES OF NOTICE

Pay Rent or Quit

Cure or Quit

Unconditional Quit

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ENTERING A RESIDENCE

Emergency Entry Entry for Requested Repairs Entry for Scheduled Repairs Entry for Law Enforcement and

Government Officials Official Entry Denied Entry

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ACTIVITY: DISCUSS YOUR EXPERIENCE WITH RENTAL LAWS

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8. MAINTAINING HABITABLE PROPERTIES

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ASSURING QUALITY HABITABILITY

Protect from weather Provide working water, heat, air

conditioning, plumbing, electric, and lighting Provide adequate waste disposal Provide clean and safe common areas Provide reasonable protection from hazards

and crime Address potential environmental hazards Control all other nuisances

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UNDERSTANDING ENVIRONMENTAL SAFETY

Asbestos

Lead

RadonCarbon Monoxide

Mold

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DETERRING CRIME

Be aware of crime in the area Work with law enforcement Educate residents about safety Establish and execute key control

procedures Stay on top of safety measures Inspect regularly – Doors, Locks, Lighting,

Landscaping, etc. Conduct background checks on employees

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ACTIVITY: DISCUSS YOUR EXPERIENCE WITH HABITABILITY LAWS AND ISSUES

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9. WORKING WITH CONTRACTORS AND CONTRACTS

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CREATING PROCEDURES FOR SERVICE AND SUPPLY BIDS

Bid Requirements

Detailed Specifications of

Work

Contract Award Notification

Performance Security

Insurance Requirements

Contract Execution

Contract Termination

Requirements

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SCOPE OF WORK

CompareThoroughDetailed

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OBTAINING BIDS FOR CONTRACTED WORK

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ELEMENTS OF A CONTRACT

Key Information (Parties, Location, Date, etc.)

Scope of Work General Waiver and Release Hold Harmless Settlement and Release Agreement Payment Terms and Penalties Signatures and Authorizations

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ACTIVITY: DISCUSS YOUR EXPERIENCES WITH CONTRACTORS AND CONTRACTS

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10. MANAGING RISK

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FIVE STEPS TO DEVELOPING A RISK MANAGEMENT PROGRAM

Acknowledge and Identify Risks

Decide How to Manage the Risks

Implement a Risk Management Plan

Review, Evaluate, and Adjust the Plan

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AREAS OF RISK

Legal Risks

Financial Risks

Safety Risks

Fraud Risks

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EVALUATING AND PRIORITIZING RISKSProximity

Adjacent properties

Weather and geography

Residents

Property arrangement

Property infrastructure

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IMPLEMENT A PLAN

Loss PreventionLoss Control

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FINANCING RISK WITH INSURANCE

Property Insurance Liability Insurance Vehicle Insurance Workers Compensation Insurance Professional Insurance Self-Insurance – Retention of Risk Others?

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TYPES OF INCIDENTS TO REPORT

Auto General Liability Property Damage Workers Compensation Crime Threats ADH or FHA Claims

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REVIEW EVALUATE AND ADJUST

Review• The Prior

Plan

Evaluate • The

Effectiveness of the prior Plan

Adjust• Based on

Effectiveness

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MANAGING A CRISIS

Communicating with Others

Responding to Crime

Taking Care of Resident Relations

Dealing with the Media

Moving to Recovery 91

ACTIVITY: DISCUSS YOUR EXPERIENCES WITH RISK AND CRISIS MANAGEMENT

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11. CURRENT LEGAL TRENDS

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CURRENT LEGAL TRENDS

The Fair Housing Act Discrimination against persons with

disabilities Non-traditional forms of discrimination “Hidden” Forms of Discrimination Accessibility Source of Income Linguistic Profiling The Violence Women Act (VAWA) Exclusionary Zoning Ordinances

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CURRENT LEGAL TRENDS

Communications Issues Exclusive Cable Agreements Can-Spam Regulations

Residential Green Building Standards Non-Smoking Policies Freon Recovery and R410a ADA Amendments Act of 2010 LBP Renovators Rule

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ACTIVITY: DISCUSS YOUR EXPERIENCES WITH RECENT LEGAL TRENDS

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12. KEY TAKEAWAYS AND ACTION PLAN

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LEARNING OUTCOMES: LEGAL RESPONSIBILITIES AND RISK

• Apartment Communities and the Law

• Hiring Employees Lawfully• Establishing Workplace

Guidelines• Counseling, Disciplining, and

Terminating Employees• Ensuring Workplace Health

and Safety• Observing Rental Laws• Maintaining Habitable

Properties • Working with Contractors

and Contracts • Managing Risk• Current Legal Trends

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THE ACTION PLAN

This plan is yours and yours alone You decide on the leadership areas you

want to work on You set the number of goals You decide on the action steps and

timeline.

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