Kelley Kronenberg - In the Know - Business - Q4 2025

IN THE

Q 4 2025

NOW

BUSINESS EDITION

EDITOR’S LETTER

WELCOME Crisis is inevitable. Catastrophe is optional. A data breach locks your systems. An employee files a lawsuit. Your largest customer invokes force majeure. OSHA arrives after a workplace accident. When crisis hits, your first 48 hours of decisions often matter more than the underlying incident. Business crises don’t confine themselves to single legal domains. That workplace accident triggers OSHA investigations, workers’ compensation claims, third-party litigation, insurance disputes, and potential criminal exposure—simultaneously. The cyber breach implicates data privacy laws, vendor contracts, and insurance notifications. Workforce reductions affect employment compliance, commercial leases, and financing covenants. In this issue, our attorneys address critical crisis decisions: how companies lose their legal defenses in the first 48 hours, cyber breach response and notification requirements, proactive employment compliance before workforce crises hit, what professionals should say when licensing and malpractice exposure intersect, coordinating multiple legal proceedings after construction accidents, and managing crisisrelated workplace injury claims. Crisis management requires coordinated legal strategy across practice areas from the moment an incident occurs. The general contractor who talks to OSHA without considering how those statements become litigation evidence makes defense harder. The employer who implements layoffs without considering wage-hour implications solves one problem while creating others. Our Business Legal Team provides integrated crisis response. When crisis hits, you don’t have time to educate multiple attorneys or reconcile conflicting advice from lawyers who aren’t coordinating. You need a team that works together from the first call—understanding how decisions in one proceeding affect others, balancing legal risk against business reality, providing unified strategy. Crisis is inevitable. How you respond is not. Kelley Kronenberg Business Legal Team

TABLE OF

CONTENTS How Companies Lose Their Case During the First 48 Hours . . . . . . . . . . . . . . . . . . . . . . 4 - 7 What Every Business Owner Needs to Know About Data Breaches . . . . . . . . . . . . . . . . 8 - 12 Why Most Companies Wait Until Crisis Hits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 - 18 Managing the Dual Crisis: Licensing Boards and Malpractice Claims . . . . . . . . . . . . . . 18 - 25 Crisis-Related Workplace Injuries and Claims Management . . . . . . . . . . . . . . . . . . . . 25 - 28 The Construction Accident That Triggers Five Different Legal Proceedings . . . . . . . . 29 - 33 Recent Blogs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 KK On Film . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 - 42 Behind the Briefcase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Kelley Kronenberg Business Legal Team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Awards and Accolades. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Firm Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 - 47

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How Companies Lose Their Case During the First 48 Hours By Amy L. Koltnow When crisis strikes—a workplace fatality, product recall, or executive misconduct—the decisions made in the first two days often determine whether your company faces manageable litigation or years of costly legal battles. Most executives focus on business continuity and public relations. But without immediate legal protocols in place, companies inadvertently destroy evidence, waive privileges, and create liability that didn’t exist before the crisis began.

DESTROYING PRIVILEGE DURING CRISIS RESPONSE The first phone calls and emails after a crisis often become exhibit A in subsequent litigation. Many companies make the mistake of looping outside consultants, PR firms, or insurance adjusters into early communications with counsel, which can destroy attorney-client privilege for those conversations. If you’re bringing in crisis management consultants or forensic investigators, retain them through counsel, not directly. Document the retention clearly. A consultant hired by the company to investigate the facts

may be considered a fact witness. The same consultant retained by your lawyer to assist in legal advice is likely to be protected by the work product doctrine.

DESTROYING EVIDENCE AND TRIGGERING SANCTIONS You have a duty to preserve documents once litigation is reasonably anticipated. “Reasonably anticipated” has a low bar—a threatening letter from opposing counsel, a regulatory inquiry, or even a serious workplace incident can trigger the obligation. Draft and circulate a litigation hold within 24 hours. Identify the key players who have relevant documents and communications. Suspend auto-delete functions on emails and texts. Notify IT to preserve server data and suspend routine system purges. The hold should be specific about what to preserve and should go to individuals by name, not just departments.

CREATING ADMISSIONS THAT PROVE LIABILITY Silence is usually impossible during a crisis, but uncoordinated statements create contradictions that fuel litigation. Designate one spokesperson—typically general counsel or an executive who understands the legal implications of each word. Draft any public statements with litigation in mind. Avoid admissions, speculation about causes, or promises about outcomes you can’t control. “We take this matter seriously and are investigating” is defensible. “This was an isolated incident that won’t happen again” becomes a plaintiff’s exhibit when it does happen again. IN THE

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Train your team on the difference between factual updates and legal admissions. In a recent wrongful death case, a manager’s immediate apology to the family—“We should have caught this, this is our fault” may become the centerpiece of the plaintiff’s liability case. Social media adds another layer. Employees post about workplace incidents in real time. Consider whether your company’s social media policy gives you grounds to direct employees not to post about the incident but get counsel’s advice first—overbroad social media restrictions can violate labor laws.

TURNING REGULATORS INTO ADVERSARIES Multiple agencies may show up simultaneously—OSHA, EPA, state regulators, law enforcement. Each has different authority, different timelines, and different consequences for how you respond. You have a Fourth Amendment right to require a warrant before allowing government inspectors into non-public areas, with limited exceptions. But demanding a warrant when OSHA shows up at your factory after a fatality looks adversarial and can escalate tensions. The better approach: cooperate with OSHA’s walkaround inspection but have counsel present to protect privilege and limit scope creep. Some regulatory investigations require immediate disclosure. Data breach notification laws, for example, impose strict

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timelines—often 30-60 days from discovery. Miss the deadline and you’ve added a regulatory violation to your crisis. Other investigations allow more time to gather facts before responding. Know which rules apply before you volunteer information. Document everything. If a regulator asks questions during a site visit, have someone take notes of what was asked and what was said. Inspectors don’t always write complete reports, and your contemporaneous notes may be the only record of what actually occurred.

VOIDING INSURANCE COVERAGE BEFORE YOU FILE A CLAIM Most executives don’t think about insurance until they need it. By then, you may have already violated policy conditions that void coverage. Review your policies immediately. Commercial general liability, directors and officers, employment practices, cyber, and professional liability policies all have different notice provisions. Some require “immediate” notice of an incident. Others require notice when a claim is made. Missing a notice deadline can result in denial of coverage for a multimillion-dollar claim. Provide notice of the potential claim to every carrier that might provide coverage, even if you’re not sure if the policy responds. Courts generally interpret notice provisions strictly against insureds. If there’s any question whether your professional liability or your general liability policy covers the incident, notice both.

Don’t admit fault or settle claims without your carrier’s consent—most policies make this a coverage condition. But also, don’t let the carrier’s interests override your business judgment about how to handle the crisis. You may need to make business decisions that conflict with the carrier’s litigation strategy, and you need to know that going in.

A CROSS-DISCIPLINARY RESPONSE Crisis management isn’t a single-practice problem. A product defect implicates commercial litigation, insurance coverage, regulatory compliance, and potential employment issues if employees knew about the problem. A data breach requires cyber incident response, but also raises questions about contractual obligations to customers, notification requirements, securities disclosure, and workplace policies. Our Business Legal Team handles crisis response by coordinating across practice areas from the first phone call. When litigation counsel works alongside employment lawyers, insurance coverage specialists, and regulatory attorneys, companies get unified advice rather than conflicting recommendations from siloed practices. One team. One strategy. All the angles covered.

TIPS & LESSONS Protect privilege from day one. Loop consultants and PR firms through counsel, not alongside counsel. Create a clear paper trail showing that outside experts were retained to assist counsel in providing legal advice.

Document preservation is not optional. Issue litigation holds to specific individuals who have custody of relevant documents to ensure all relevant data is preserved. Suspend auto-delete functions immediately. Courts show little mercy for spoliation, even when it’s negligent rather than intentional. Control the narrative without creating admissions. Designate a single spokesperson who understands litigation risk. Every public statement should assume it will be read aloud to a jury. Know your regulatory obligations before investigators arrive. Some disclosures are mandatory and time-sensitive. Others can wait until you’ve gathered facts. Understand which rules apply to your crisis before you start talking. Notice all potentially applicable insurance policies immediately. Missing a notice deadline can cost you coverage. When in doubt, give notice. Carriers can always disclaim later, but you can’t cure a missed deadline. Balance legal advice with business reality. Your lawyer’s job is to minimize legal risk. Your job is to run the business. Sometimes those goals conflict, and you need to make an informed decision about which risk you’re willing to accept.

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What Every Business Owner Needs to Know About Data Breaches By Timothy D. Shields It’s 2 AM and your phone is ringing. Your IT director discovered unauthorized access to your systems. Customer data might be exposed. Or maybe it’s worse—your screens are locked with a ransom demand. Whatever sleep you were getting is over, and 8 | IN THE

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the decisions you make over the next few days will determine whether this becomes a manageable incident or a company-ending crisis. Let me walk you through what actually happens during a cyber incident and the decisions you’ll face. I’ve guided dozens of companies through this process, and the ones that come out okay are the ones who understand the timeline and obligations before panic sets in.

THE CLOCK IS ALREADY RUNNING Here’s something most executives don’t realize: the moment you discover a breach, legal deadlines start counting down. Not when you finish investigating. Not when you know all the details. The second you discover something is wrong.

Florida gives you 30 days to notify affected individuals. California says “without unreasonable delay”—which sounds flexible until regulators decide six weeks later that you took too long. If you’re in healthcare, HIPAA gives you 60 days. If EU citizens are affected, you have 72 hours to notify regulators under GDPR.

your systems requires skills your network administrator probably doesn’t use daily.

This creates an immediate problem. You need time to investigate what happened, but you can’t delay notification indefinitely. I’ve seen companies spend two weeks finding a forensic team and another week getting preliminary results, only to realize they have less than a week left to draft and send thousands of notification letters.

Third—and this is critical—how you retain the forensic team determines whether their findings help you or hurt you. If your company hires them directly, their entire investigation may be discoverable in lawsuits. But if your attorney retains them to help provide legal advice, the work product doctrine may protect their findings.

The lesson? You can’t figure out your notification obligations during a breach. You need to know them now, before anything happens. Your industry, your data types, your customers’ locations—all of these determine which laws apply and how much time you have.

This is why one of your first calls should be to legal counsel who can then bring in forensics. Yes, it adds a step. But that step could be the difference between a privileged investigation and handing evidence to plaintiffs’ lawyers.

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SHOULD YOU CALL IN YOUR FORENSIC EXPERTS? Yes. Full stop. Your IT team knows your systems, and their first instinct will be to investigate and fix the problem. That’s usually a mistake for three reasons. First, forensic investigation requires specialized tools and expertise that most internal IT teams don’t have. Finding out exactly what the attackers accessed, how they got in, and whether they’re still in

Second, if this ends up in litigation or regulatory enforcement, you’ll need credible documentation of what happened. A report from your IT director carries less weight than analysis from a recognized forensic firm.

Once the forensic team is working, resist the urge to “help” by having IT restore systems or make changes. Well-meaning efforts to get back online can destroy evidence that shows how the breach happened and proves you weren’t negligent.

WHO DO YOU HAVE TO NOTIFY, AND WHEN? This is where things get complicated fast, because the answer depends entirely on what kind of data you have and what industry you’re in.

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Healthcare organizations dealing with protected health information face HIPAA rules. If 500 or more people are affected, you notify the Department of Health and Human Services immediately. Fewer than 500? You can report annually, but you still notify affected individuals within 60 days. Financial institutions have GLBA requirements and various banking regulations. Public companies might need SEC disclosure if the breach is material. Many states require you to send copies of consumer notifications to the state attorney general. And here’s the part that surprises people: just because your vendor got breached doesn’t mean you’re off the hook. Your payment processor gets hacked, your cloud provider suffers an incident, a third-party service with access to your customer data gets compromised—you likely still have to notify your customers. Your customers don’t care that technically it was someone else’s systems. They gave their information to you. They expect you to tell them when it’s compromised, regardless of where the compromise happened. This is why your vendor contracts matter so much. What are their obligations to notify you? How quickly? What information will they provide? Many contracts are silent on these points, which leads to fighting with vendors during a crisis when you should be focused on response.

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When dealing with third-party breaches, you face an additional challenge: your notification deadline doesn’t wait for your vendor to get their act together. If they take three weeks to tell you what happened, you might have only one week left to meet your 30-day deadline. You may have to notify based on incomplete information rather than miss your deadline entirely.

THE RANSOMWARE QUESTION NOBODY WANTS TO ANSWER Should you pay the ransom? The FBI says don’t pay. Security experts say don’t pay. And from a pure policy standpoint, they’re right. Paying funds criminal enterprises, provides no guarantee you’ll get your data back, and encourages more attacks. But I’ve sat in conference rooms at 3 AM with executives looking at a choice between paying $50,000 now or spending $500,000 rebuilding systems over several weeks while their business is completely offline. The math isn’t always as simple as “never pay.” Before you even consider payment, understand the legal risks. The Office of Foreign Assets Control has made clear that paying ransoms to sanctioned entities violates federal law. Even though you’re the victim, your company can face penalties for making the payment. If you’re even thinking about paying, you need counsel involved immediately. They can help determine whether payment is

legally permissible, whether your insurance covers it, and how to properly document the decision. Many insurance policies will cover ransom payments, but only if coordinated through the insurer.

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And here’s what surprises people: paying the ransom doesn’t end your obligations. If the attackers accessed personal data before encrypting your systems—and many do— you still have to notify affected individuals and regulators. Payment gets your systems unlocked. It doesn’t make the breach notification requirements disappear. The better answer? Prepare now so you never face this decision. Maintain isolated backups that ransomware can’t touch. Have an incident response plan ready. Get insurance that includes ransomware response. Train your people to spot phishing attempts. These investments made today eliminate the impossible choice tomorrow.

WHAT HAPPENS AFTER THE CRISIS? Once systems are back online and notifications are sent, many companies want to put the incident behind them and move on. That’s a mistake. Your forensic team’s report tells you how the attackers got in. Unpatched software? Phishing email? Weak passwords? Each requires specific fixes. If you don’t implement those fixes and get breached again, regulators and courts will destroy you. The first breach might be misfortune. The second breach after ignoring recommended fixes is negligence.

You also need to maintain communication with affected individuals beyond the initial notification letter. What are you doing differently? What protections are you offering? Credit monitoring if financial information was exposed? These steps cost money, but they preserve customer relationships and show good faith if lawsuits follow. Finally, update your incident response plan based on what you learned. What worked? What didn’t? What took longer than expected? The next incident won’t look like this one, but the lessons you take from this experience will make you better prepared.

WHY CYBER RESPONSE REQUIRES AN INTEGRATED TEAM Here’s what I’ve learned from managing cyber incidents: they never stay in one legal lane. A data breach starts as a technology and privacy issue, but it immediately implicates commercial litigation, regulatory compliance, employment law if employee records are involved, and contract disputes with vendors or customers. When these issues are handled by different lawyers who aren’t coordinating, you get conflicting advice. Your privacy lawyer says notify immediately. Your litigation counsel says wait for more facts. Your employment lawyer wants to handle employee notifications separately. Meanwhile, deadlines are passing. Our Business Legal Team handles cyber incidents by coordinating across practice areas from day one. Privacy counsel, IN THE

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commercial litigators, employment lawyers, and regulatory specialists work together on the same response. You get unified strategy instead of competing priorities. When litigation or enforcement follows, the same team that managed your response handles your defense with complete knowledge of every decision and why you made it. We also help clients prepare before incidents happen by reviewing vendor contracts, insurance policies, and response plans. Because the time to figure out your obligations is now, not at 2 AM when your phone is ringing­.

WHAT YOU NEED TO DO RIGHT NOW If you haven’t had a breach yet, here’s your homework: Know which notification laws apply to your business based on your industry, data types, and customer locations. Document these requirements and deadlines so you’re not researching them during a crisis. Review your vendor contracts for notification requirements and response obligations. If your contracts are silent on these points, amend them before you need them. Retain legal counsel who can coordinate with forensic teams and protect privilege. Having this relationship established before a breach means you can move immediately when something happens.

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Verify that your insurance covers cyber incidents including forensic costs, notification expenses, credit monitoring, and potentially ransom payments. Many policies have gaps that only become apparent during a claim. Develop and test an incident response plan that identifies your response team, notification obligations, and decision-making authority. A plan that sits in a drawer is worthless. Your team needs to know the plan exists and understand their roles. If you’re managing a breach right now, remember that the decisions you make in the first 24-72 hours set the trajectory for everything that follows. Get legal counsel involved immediately. Bring in qualified forensic experts through counsel. Understand your notification obligations and deadlines. Document your decision-making process. And don’t try to handle this alone— cyber incidents require coordinated response across multiple legal disciplines. The companies that survive cyber incidents aren’t necessarily the ones with the best security. They’re the ones who respond effectively when security fails.

Why Most BEHIND THE Companies Wait Until Crisis Hits By David S. Harvey I got a call last month from an HR director whose company just got hit with a class action lawsuit over sick leave violations. Her first question: “Can we fix this now?”

Too late. The lawsuit was filed, the lawyers were circling, and every change they made would look like an admission of guilt. After 30+ years representing employers in crisis situations, I can tell you the difference between companies that survive legal disasters and those that don’t comes down to one thing: they plan before the crisis arrives, not after. Most businesses handle employment crises the same way—they panic, scramble, and throw money at problems that could have been prevented. This article addresses what

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actually works and why waiting until you’re in crisis mode costs far more than proactive planning.

short-term disability. Six months later, you’re sorting out conflicts that confuse managers and expose you to claims.

THE PATTERN YOU’RE MISSING

Your managers aren’t trained. Rolling out new policies without proper training guarantees inconsistent application. Inconsistent application is how discrimination lawsuits start. An employee in one department gets three days bereavement leave while an employee in another department gets denied. Both had the same circumstances. One files an EEOC charge alleging discrimination.

Employment law changes follow a predictable cycle. Major shifts typically happen when presidential administrations change and every fall, with January 1 or June 1 effective dates. Yet companies act surprised every time. This year alone, employers are scrambling to comply with Florida’s new minimum wage rates, Illinois bereavement leave requirements effective January 1, Illinois NICU leave mandates, and Minnesota’s new state FMLA launching January 1, 2026 with eligibility thresholds well below federal FMLA. Companies with employees in Chicago, Cook County, or Illinois face overlapping paid leave obligations that require separate tracking systems.

You miss state-specific traps. Some states require final paychecks immediately at termination. Others impose daily financial penalties for late payment. California hits particularly hard on this. If your payroll system isn’t set up properly, you’re bleeding money with every termination.

THE AUDIT NOBODY WANTS TO DO Companies that wait until December to figure out January 1 compliance deadlines end up with poorly planned strategies that create bigger problems down the road. I’ve seen this pattern destroy otherwise solid businesses.

WHY SCRAMBLING COSTS MORE THAN PROACTIVE PLANNING When you rush policy changes at the last minute, several things go wrong. Your policies don’t work together. You add Illinois bereavement leave without considering how it interacts with your existing PTO policy, FMLA obligations, and 14 | IN THE

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Florida is an epicenter for litigation over wages, exempt status, and tips. I handle these cases constantly, and most could have been prevented with proactive audits. Here’s what companies don’t understand: doing payroll audits proactively lets you control the narrative. You can frame changes as employee benefits rather than admitting errors. You can consider alternative compliance methods that achieve the same result with less disruption. Once a lawsuit or DOL investigation starts, every change you make looks like an

admission. Your options narrow significantly, and the settlement costs multiply.

not sure,” you’ve lost credibility with the jury before the merits are even discussed.

Take exempt classifications. You’ve classified your operations managers as exempt. They supervise two employees and spend 60% of their time performing the same tasks as the employees they supervise. That’s likely misclassification under the FLSA.

Final pay rules vary wildly by state. Some states require immediate payment at termination. Others give you until the next regular payday. Get this wrong and penalties add up fast. An employee terminated in California who doesn’t receive their final check immediately accrues waiting time penalties equal to a full day’s wages for each day payment is late, up to 30 days. That $80,000 employee whose final check arrives three weeks late just cost you $9,600 in penalties.

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If you discover this through an internal audit, you can reclassify them, adjust compensation to account for expected overtime, and message this as ensuring compliance with wage laws. If the DOL discovers it through investigation, you’re paying back wages, liquidated damages, and penalties. The employee who was making $55,000 as an exempt employee is now owed two years of overtime, which becomes a $40,000 problem. Multiply that across ten misclassified managers and you’re facing a half-million-dollar settlement before legal fees.

STATE COMPLIANCE REQUIREMENTS YOU’RE PROBABLY MISSING If you operate in multiple states, you’re juggling different requirements that don’t care about your corporate convenience. Annual training mandates exist in many states. Sexual harassment training, including bystander training, is required annually in several jurisdictions. Miss this and you’re exposed when claims arise. The first question plaintiffs’ counsel asks: “When did the company last provide harassment training?” If your answer is “never” or “I’m

Overlapping leave obligations create compliance nightmares. Employees in Chicago or Cook County face three layers of paid leave requirements—city, county, and state. You need separate tracking systems that comply with each. An employee accrues leave under all three, uses leave under different provisions, and carries over unused leave according to different rules. Your HR system needs to track all of this separately. Minnesota’s FMLA expansion effective January 1, 2026 creates obligations for employers who thought they were exempt. Federal FMLA covers employers with 50 or more employees. Minnesota’s state FMLA will cover smaller employers with lower eligibility thresholds. If you’ve been operating under the assumption that your 35-employee Minnesota company doesn’t have FMLA obligations, that changes next year.

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YOUR PROACTIVE APPROACH Companies that avoid employment disasters follow a disciplined approach to compliance. Monitor law changes aggressively. Don’t wait for your payroll vendor to tell you about changes. They often miss state-specific requirements or notify you too late to implement properly. Subscribe to updates from state labor departments. Work with employment counsel who tracks legislative changes in jurisdictions where you operate.

the manager is right but the employee now has evidence that management doesn’t understand your own policies. Audit payroll annually. Florida employers should audit exempt classifications, tip credit compliance, and bonus calculations yearly. Find problems before employees or DOL investigators do. Budget for this. The cost of an annual audit is a fraction of the cost of defending a wage and hour collective action.

WHEN CRISIS BECOMES PUBLIC Draft policies in advance. Review upcoming changes in September for January effective dates. This gives you time to draft policies, get legal review, coordinate with payroll and HR systems, and plan training. Waiting until December means you’re implementing untested policies under deadline pressure. Test how policies work together. New policies interact with existing ones. Map out how bereavement leave affects PTO accrual. How does state FMLA coordinate with federal FMLA? How do exempt status changes impact bonus programs? Work through scenarios before employees start asking questions you haven’t considered. Train managers before implementation. Managers need to understand policies before employees start asking questions. Inconsistent answers create liability. Your operations manager who tells employees “I don’t think that applies to us” when asked about new paid leave requirements has just created a problem. Either the manager is wrong and you’ve denied statutory leave, or 16 | IN THE

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Not every lawsuit makes headlines. But some do—particularly large class actions or cases involving severe harassment or misconduct allegations. These can damage your company’s reputation before any court determines fault. I’ve watched businesses lose major contracts because negative press damaged their reputation. By the time they won the lawsuit, the damage was permanent. Customers don’t read the final judgment. They read the initial allegations. If you’re facing newsworthy litigation, you need a public relations professional working alongside your legal counsel. There are strict rules about what you can say during pending litigation. Any public statement may impact your defense. The PR professional should coordinate with your attorney to craft messages that comply with legal restrictions while protecting your reputation with customers, employees, and investors. This isn’t about spin—it’s

about strategic communication that doesn’t undermine your legal defense.

settlement costs, litigation fees, and damage control expenses.

Your attorney will tell you to say nothing. That’s good legal advice. But sometimes saying nothing destroys your business relationships while you’re waiting for vindication in court. The solution is coordinated legal and PR strategy that allows appropriate communication without compromising your defense.

THE CROSS-DISCIPLINARY REALITY

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WHY COMPANIES KEEP MAKING THE SAME MISTAKE The pattern repeats constantly. Companies know major law changes are coming but convince themselves they have time. Then December hits, implementation deadlines loom, and they’re scrambling to achieve compliance with policies that haven’t been properly vetted or tested. Others wait until they’re sued to audit payroll practices. By then, every adjustment looks like an admission, settlement costs multiply, and your narrative options disappear. The companies I represent that never face crisis situations are the ones that treat compliance as ongoing practice, not emergency response. They budget for policy reviews, schedule training in advance, and conduct proactive audits before problems surface. These companies spend more on employment counsel in years when nothing goes wrong. But they spend dramatically less over time because they’re not paying

Employment crises don’t exist in isolation. A wage and hour misclassification lawsuit triggers questions about tax withholding, retirement plan contributions, workers’ compensation premiums, and unemployment insurance obligations. The employee you classified as exempt who’s now claiming overtime status wasn’t paying FICA taxes on the overtime they should have been earning. That’s an IRS problem on top of the DOL problem. A harassment claim that becomes public affects your commercial relationships, may trigger indemnification provisions in customer contracts, and raises questions about directors and officers liability coverage. Your general counsel is handling the EEOC charge, but your contracts attorney needs to review customer agreements for reputation-based termination provisions, and your insurance coverage attorney needs to evaluate D&O policy implications. Our Business Legal Team coordinates across practice areas when employment crises arise or when proactive planning touches multiple legal domains. When employment counsel works with benefits attorneys, corporate counsel, and insurance coverage specialists, you get unified strategy rather than conflicting advice from lawyers who aren’t coordinating with each other.

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DON’T WAIT FOR THE LAWSUIT Employment crisis management isn’t about handling disasters after they happen. It’s about preventing them before they start. This requires disciplined attention to changing laws, proactive policy development, and regular compliance audits. The difference between companies that survive employment litigation and those that don’t isn’t luck. It’s preparation. Budget for annual policy reviews. Schedule compliance training in advance. Audit your payroll practices before someone else does. And when crisis does strike, coordinate your legal and public relations response before you say anything that makes the situation worse.

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Managing the Dual Crisis: Licensing Boards and Malpractice Claims By Elizabeth P. Perez and Julie B. Karron The phone call comes from a patient’s attorney alleging wrongdoing, demanding records, or threatening action. Or an envelope from the state licensing board. Or both. Between the moment you realize a complication occurred

and the moment formal proceedings begin; you made dozens of decisions about what to say and to whom. Those decisions—more than the underlying medical or professional issue—often determine whether you’re defending your license, your assets, or your entire career.

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We approach these situations from different angles. Elizabeth represents healthcare professionals before licensing boards and regulatory agencies. Julie defends professionals in malpractice litigation and handles defense of insurance claims. We’ve seen the same adverse event unfold along parallel tracks: one professional navigates issues successfully because they understood how every statement and every action can affect both proceedings and timely seeks legal representation; another jeopardizes their professional licensure over conduct that would have been defensible if they’d obtained professional advice and coordinated their response.

have caught this earlier”—became the board’s primary evidence of substandard care. State licensing boards are not looking for subtle distinctions between empathy and admission. They are looking for grounds to take disciplinary measures, often impacting licensure. A statement like “I take full responsibility for what happened” may sound professionally accountable, when in reality it is interpreted as an admission that you violated the standard of care. Julie: That same statement also jeopardizes your ability to effectively defend against the claim. When a malpractice claim arrives months later, opposing counsel attaches your medical record note or the patient’s affidavit quoting what you said. Defense counsel can’t un-ring that bell. You’ve admitted liability before anyone even analyzed whether liability exists.

EXPRESS CONCERN WITHOUT ADMITTING FAULT

Many states have apology statutes protecting expressions of sympathy; however, these statutes draw fine lines. “I’m sorry this happened” may be protected. “I’m sorry I made this mistake” admits fault. In the immediate aftermath of an adverse event, most professionals don’t parse language this carefully.

Elizabeth: When a licensing board receives a complaint, one of the first things investigators look for is evidence of the professional’s own acknowledgment of error. Your statement to the patient or client becomes part of the board’s file. We’ve defended physicians whose compassionate bedside statements—”I’m so sorry, we should

What to say instead: Focus on current status and next steps without characterizing what happened as an error. “I understand this isn’t the outcome we hoped for. Let me explain what we’re doing now to address this” expresses engagement without conceding negligence. Document this conversation

The difference is not the severity of what went wrong. It is the delays or the unfiltered statements that were made after the fact.

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carefully—what you said, what the patient or client said, what clinical steps you’re taking. Contemporaneous documentation protects you in both licensing proceedings and litigation.

CONTACT YOUR ATTORNEY BEFORE CONTACTING YOUR INSURANCE CARRIER Julie: Your professional liability policy requires prompt notice of incidents that may give rise to claims. Most professionals interpret this as “call the insurance company immediately.” That’s not quite right. Call your professional liability defense attorney first. Here’s why: Once you report to your carrier, the carrier assigns an adjuster. That adjuster will ask you to explain what happened. Your explanation goes into the carrier’s file. If the claim proceeds to litigation, that file may become discoverable. Statements you made thinking you were speaking confidentially to your insurer may become evidence. Your attorney can coordinate the insurance notification, ensuring that what gets reported is accurate, complete, and doesn’t create unnecessary exposure. The attorney-client privilege protects your initial conversation with counsel. That same privilege doesn’t automatically extend to conversations with your insurance carrier. Elizabeth: The same principle applies to licensing board responses. Before you respond to a board inquiry—even an informal call from an investigator—consult with licensing defense counsel. Boards have strict 20 | IN THE

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deadlines, typically 20-30 days for written responses. But taking 48 hours to coordinate your response with counsel, or hiring counsel to handle the response on your behalf, won’t prejudice your standing with the board, and it significantly improves the quality of that response. In addition, counsel will know how to demand information that will be crucial for your success. Board investigators are not your friends. They’re gathering evidence. They’re trained to ask open-ended questions that encourage you to provide narrative responses. Those narratives often include admissions or characterizations that weren’t necessary and that later become problematic. Having counsel review what you’re going to say—or better yet, having counsel communicate directly with the board—protects you from inadvertent admissions.

DOCUMENT EVERYTHING CONTEMPORANEOUSLY, BUT NEVER ALTER RECORDS Julie: The single most common mistake professionals make after an adverse event is failing to document thoroughly while the facts are fresh. Months later during litigation, you are left trying to reconstruct what happened based on incomplete records and fading memory. That reconstruction is never as credible as contemporaneous documentation. Document what occurred, when, what interventions you provided, and the patient’s or client’s condition. Document conversations with the patient or client, including their questions, your explanations,

and any demands or allegations they made. This documentation becomes essential to your defense.

because of what they did to the records after the adverse event. Keep your documentation contemporaneous and avoid modifications.

But—and this is critical—never alter existing records after an adverse event is identified. Don’t add clarifying notes to earlier entries. Don’t modify dates or times. Don’t “clean up” your documentation to make it more complete. Courts and licensing boards can detect altered records, and spoliation of evidence creates its own liability separate from the underlying malpractice claim. Your credibility becomes the issue, not just the standard of care.

TRAIN YOUR STAFF ON WHAT THEY CAN AND CANNOT SAY

BEHIND THE

If you need to add information after the fact, do so through a clearly dated addendum that’s explicitly identified as a postevent addition. Explain why you’re adding the information now. This transparency protects you from allegations of tampering while allowing you to provide complete documentation. Elizabeth: Improperly altered records in licensing board cases are devastating. Boards view improper record alteration as evidence of consciousness of guilt. Even if you can ultimately defend the underlying care, the board can discipline you for altering records. Worse yet, the disciplinary action is reportable to the National Practitioner Data Bank which affects hospital credentialing, malpractice insurance rates, and your ability to participate in federal healthcare programs. We’ve seen professionals lose their licenses not because of the adverse event, but

Elizabeth: Licensing board investigators don’t just interview professionals. They interview staff. Your receptionist, your medical assistant, your paralegal—anyone who had contact with the patient or client. Staff members who haven’t been trained on appropriate responses often provide information that creates problems. We’ve defended cases where a medical assistant, trying to be helpful, told a board investigator: “Yes, the doctor was running really behind that day and seemed stressed.” That statement becomes evidence that the physician provided rushed and potentially viewed as substandard care. The medical assistant thought she was providing context. She actually provided ammunition. Julie: Staff social media posts create similar problems. Your nurse who posts “Rough day at work, had to deal with a really angry patient” has just created evidence that an incident occurred significant enough to post about. Your legal assistant who posts “Working late to fix a problem” has just suggested your firm made an error requiring correction. Train every employee now, before an incident occurs. Staff should know that if anyone— patient, family member, media, board investigator—asks about an adverse event, IN THE

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the only appropriate response is: “I can’t discuss patient/client matters. Dr./Attorney [Name] is the appropriate person to speak with.” Period. No elaboration. No attempt to be helpful. No speculation about what might have happened. Implement a written policy prohibiting staff from posting about patients, clients, or work incidents on social media, whether on professional or personal accounts. Courts don’t distinguish between your paralegal’s work Twitter account and her personal Instagram when determining what’s discoverable.

UNDERSTAND HOW LICENSING BOARD DISCIPLINE AFFECTS INSURANCE COVERAGE AND LITIGATION Elizabeth: If a licensing board finds that you violated the standard of care and imposes discipline—even minor discipline like a letter of concern or required additional education— that finding becomes evidence in related malpractice litigation. Plaintiffs’ attorneys will argue that the board’s finding proves negligence. You can’t credibly testify “I met the standard of care” when the licensing board determined you didn’t. This is why fighting board investigations and complaints vigorously matters, even when the underlying incident seems minor. What feels like accepting a letter of concern to make the board case go away becomes accepting evidence that will be used against you in litigation. Julie: Board discipline also affects 22 | IN THE

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professional liability insurance coverage. Many policies exclude coverage for intentional acts or conduct that’s been determined to constitute fraud or criminal activity. If a board finds that you engaged in conduct warranting disciplinary action, your carrier may disclaim coverage for related malpractice claims, arguing that the conduct falls outside the policy. The timing matters, too. If you resolve a board complaint before notifying your malpractice carrier of a potential claim, you may have violated the policy’s notice requirements. But if you notify the carrier too early, before you understand the facts, you may create an insurance record that affects your premiums or future insurability even if no claim ever materializes. This is why you need counsel coordinating both sides. Your licensing defense strategy can’t ignore insurance implications. Your insurance defense strategy can’t ignore licensing implications. Statements made in one proceeding affect the other.

COORDINATE YOUR LEGAL AND PR RESPONSE, BUT LEGAL TAKES PRIORITY Julie: When adverse events become public, professionals face pressure to respond publicly to protect their reputation. Your practice administrator wants to issue a statement. Your hospital’s PR team wants a response. You want to defend yourself. Before making any public statement, understand that anything you say publicly can and will be used in litigation. “Dr. Smith

denies all allegations and maintains he provided appropriate care” may feel good from a reputational standpoint, but it commits you to positions before you’ve had time to review all the facts. If the facts later show you didn’t provide appropriate care in some respect, your public denial becomes evidence of dishonesty. Some statements accomplish both legal and reputational objectives. “Dr. Smith is committed to patient safety and is cooperating fully with the investigation” shows engagement while protecting legal interests. “Dr. Smith takes these allegations seriously and believes a complete review will demonstrate that appropriate care was provided” maintains your position without overpromising what the facts will show. Elizabeth: Public statements also affect licensing board proceedings. Boards review media coverage and public statements when evaluating complaints. A defiant public statement denying wrongdoing can make the board more likely to pursue formal charges rather than resolving the matter informally. Before engaging a PR firm, have them coordinate with your licensing and malpractice defense counsel. The PR professional may not understand legal implications. Your attorney may not fully appreciate reputational stakes. They need to work together under your attorney’s guidance.

NEVER RESPOND TO OPPOSING COUNSEL WITHOUT YOUR ATTORNEY Elizabeth: Once you receive a letter from an attorney representing the patient or client, or once you receive notice that a formal investigation or complaint has been filed with your licensing board, all direct communication stops. Every communication from that point forward goes through your attorney. Do not attempt to resolve the situation directly. Do not reach out to the patient or client to explain or apologize. Do not provide information to the opposing attorney or board investigator without counsel’s involvement. These attempts to help invariably hurt. We’ve defended professionals who, trying to be cooperative, met with opposing counsel without their own attorney present to “explain what really happened.” That conversation— without the protection of privilege, without preparation, without understanding of legal issues at stake—becomes a statement that’s impossible to walk back. Julie: If opposing counsel contacts you directly after you’ve retained an attorney, refer them to your counsel and notify your attorney immediately that direct contact occurred. In most jurisdictions, it’s unethical for opposing counsel to contact a represented party directly, but it happens. Don’t engage. The same rule applies to board investigators. Once you’ve retained licensing counsel, have that attorney handle all board communications. Investigators sometimes try to reach professionals directly with “just IN THE

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a quick question.” That quick question is designed to elicit information without your attorney’s protection. Politely decline and refer them to your counsel.

KNOW WHEN INSURANCE COVERAGE MAY NOT PROTECT YOU Julie: Most professional liability policies cover negligence. They don’t cover intentional acts, criminal conduct, or fraud. They don’t typically cover disciplinary actions by licensing boards—those aren’t “damages” covered by malpractice policies. If a board investigation uncovers conduct that could be characterized as intentional rather than negligent—Medicare fraud, prescription drug diversion, falsifying records—your professional liability carrier may disclaim coverage for related malpractice claims. You need separate counsel for licensing defense and potentially criminal defense. Review your policy now to understand what’s covered and what’s excluded. Understand the notice requirements and deadlines. Most policies require notice when you first become aware of an “incident that may give rise to a claim,” not just when a formal claim is filed. Missing notice deadlines can void coverage entirely. Elizabeth: Insurance also doesn’t reimburse licensing board fines or sanctions. If the board imposes a $50,000 fine, you’re paying that personally. If the board requires you to complete remedial education or practice under supervision, those costs are yours. 24 | IN THE

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This is why some professionals carry separate coverage for licensing board defense. These policies reimburse legal fees for defending licensing complaints. They don’t cover the underlying sanctions, but they help with the cost of defense, which can easily reach $50,000-$100,000 for contested cases.

PROTECTING YOUR PRACTICE WHILE PROTECTING YOURSELF When something goes wrong in your practice, you’re juggling multiple obligations and competing concerns. You want to do right by your patient or client. You need to protect your license. You need to protect your assets. You need to maintain your practice and serve other patients or clients. You need to protect your reputation. These interests don’t always align neatly. The statement that feels right from a patient care or client service perspective may be wrong from a legal protection perspective. The response that minimizes licensing risk may not be optimal for insurance purposes. This is where having integrated legal counsel matters. We work with professionals to coordinate licensing defense, insurance claims, and malpractice litigation as interconnected pieces of the same problem. Board responses can’t contradict litigation positions. Insurance coverage determinations may depend on board findings. Settlement negotiations may hinge on whether board discipline is likely.

The professionals who manage adverse events most successfully are those who’ve prepared before crisis hits. They’ve established relationships with both licensing and malpractice defense counsel. They’ve trained staff on communication protocols. They’ve reviewed their insurance coverage. They’ve implemented documentation practices and social media policies.

Crisis-Related Workplace Injuries and Claims Management

Most importantly, they’ve accepted that their professional instinct to take responsibility and explain must be tempered during potential liability situations. You can express concern without admitting fault. You can remain engaged with patients and clients without speculating about causation. You can maintain your professional reputation while protecting your legal interests.

By Elizabeth A. Yohe

Your response in the first hours and days after an adverse event shapes everything that follows—licensing investigations, insurance claims, malpractice litigation, and your ability to continue practicing. Make those hours count by knowing what to say, what not to say, and who should speak on your behalf.

Last year one of our manufacturing clients faced their worst nightmare. A partial building collapse injured fourteen employees and traumatized dozens more who witnessed it. Six months later we were still managing claims from that single morning. That experience reinforced what my years in government service and workers’ compensation defense have taught me: crisis events don’t follow any playbook, let alone the normal claims playbook. The rules change when multiple employees are hurt at once or when psychological trauma spreads through an entire workplace.

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THE REALITY OF MASS CLAIMS EVENTS Most employers are prepared for individual workplace injuries; few are ready for twenty claims at once. The administrative burden alone can overwhelm even experienced HR teams. Phone lines jam. Documentation gets missed. Critical deadlines pass unnoticed. I’ve handled claims from active shooter incidents, chemical/toxic exposures, and even building failures. Each taught me something different, but they all shared common problems that smart employers can anticipate. The first 72 hours matter most. This is when you establish the playbook to avoid the multitude of problems that can exponentially increase in these situations. The way to do achieve this is by controlling the narrative and setting expectations with your carrier.

STRESS AND PTSD CLAIMS AFTER CRISIS Florida law traditionally requires a physical injury to support mental health claims, but crisis events complicate this standard. We’re seeing more employees file stress claims when they realize they can’t return to the workplace where trauma occurred. Consider the maintenance worker who finds a deceased colleague after a workplace shooting. No physical injury but significant psychological impact. Or the accounting team that worked one floor below a structural collapse. They heard everything but saw nothing. Are their anxiety claims 26 | IN THE

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compensable? What about those workrelated stress and/or anxiety injuries that then cause physical injury, such as a heart attack? The answer often depends on documentation created in those first few days. Did anyone interview these employees? Document their whereabouts during the event? Note their immediate reactions? These contemporaneous records become critical when a stress claim accompanies a physical injury months later. Part of the problem is that an injured employee in this scenario may have to overcome the timeliness requirements in order to pursue a claim/PTSD claims present another challenge. The diagnostic criteria require specific symptoms persisting for at least thirty days. Those employees who choose to file claims within less than 30 days do so when diagnoses remain uncertain. This creates pressure to accept claims before you know their true nature or extent. Please note that the law makes an exception for first responders suffering from work-related PTSD in certain situations.

RETURN-TO-WORK DURING CRISIS RECOVERY Getting employees back to work after a crisis requires more than medical clearance. The workplace itself may trigger symptoms. I’ve seen employees who recovered physically but couldn’t enter buildings where their injury occurred as a result of a crisis. Others could work but only with extensive accommodations that could disrupt operations of some businesses.

Some practical considerations I share with clients: Temporary relocation often works better than forcing confrontation with trauma sites. One retail client moved an entire department to another building for three months while renovating the area where an incident occurred. The cost was significant but less than extended disability claims. Modified duty becomes complicated when psychological limitations overlap with physical restrictions. The warehouse worker with PTSD from a forklift accident might be physically capable of light duty but psychologically unable to work near operating equipment.

MANAGING VOLUME WITHOUT LOSING CONTROL Twenty simultaneous claims possibly means different adjusters, multiple sets of medical providers, and even twenty potential litigation files. Consistency becomes nearly impossible without deliberate coordination. I recommend clients designate a single point person to coordinate with their carrier. This person should have authority to make decisions and direct resources. They become institutional memories when details blur weeks later. Create standard protocols immediately. Which doctors will perform initial evaluations? What information will you

provide to all claimants? How will you track who was where during the incident? These decisions prevent twenty different approaches that later conflict in litigation. Document everything but avoid creating inconsistent records. Well-meaning supervisors often write incident reports that contradict each other about basic facts. Establish one official record-keeper and funnel information through them.

PRACTICAL STRATEGIES FROM THE TRENCHES 1. Triage by exposure level. Not everyone present during a crisis has equal claim potential. The employee in direct danger faces different issues than one who learned about events secondhand. Categorize early to allocate resources effectively. 2. Coordinate with general liability carriers. Crisis events often trigger multiple insurance policies. Workers’ compensation may be primary for employees but general liability might cover contractors or visitors present during the incident. 3. Prepare for delayed claims. The employee who seems fine initially may develop symptoms weeks later. Keep detailed records of everyone present, even those declining immediate treatment. 4. Manage medical provider relationships. Mass events can overwhelm local occupational clinics. Pre-arrange overflow protocols with providers to maintain quality care and documentation. IN THE

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5. Address workplace safety perception. Employees need to see concrete changes after crisis. Even if the event was unpreventable, visible safety improvements reduce anxiety and potential claims.

LOOKING FORWARD Crisis events are increasing in frequency and severity. Weather events grow more extreme. Workplace violence appears in unexpected settings. Infrastructure ages. Employers who prepare for mass claim scenarios position themselves to protect both their workforce and their bottom line. The goal is to prepare for as many claims ahead of time, but to manage them

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effectively when prevention fails is what will make the difference. Clear protocols, consistent documentation, and strategic early intervention make the difference between a manageable situation and one that could spiral out of control. The building collapse we talked about earlier taught our client valuable lessons about crisis response. More importantly, it showed that preparation and quick strategic thinking can minimize long-term impact even when facing the worst possible scenario. The claims from that event are now closed. The lessons learned continue to guide our approach to crisis management.

The Construction Accident That Triggers Five Different Legal Proceedings By Gary L. Brown When a worker suffers catastrophic injuries or dies at a construction site, the legal response is never singular. Within hours, OSHA investigators arrive. Within days, workers’ compensation claims are filed. Within weeks, personal injury attorneys file third-party liability lawsuits. Insurance carriers issue reservation of rights letters. Contractors and subcontractors invoke indemnification provisions. In the most serious cases, prosecutors review potential criminal charges. The legal complexity isn’t just the number of proceedings—it’s how they intersect. Evidence gathered in OSHA investigations becomes exhibits in civil or criminal trials. Statements made to OSHA or insurance adjusters may resurface in depositions. Decisions about job site operations affect evidence preservation obligations. Workers’ compensation findings may influence thirdparty liability exposure.

After handling construction accident litigation for years, I’ve observed that contractors’ legal outcomes often depend less on the accident itself and more on how they coordinate their response across multiple simultaneous proceedings. A well-managed OSHA investigation strengthens civil defenses. A poorly coordinated insurance claim may undermine indemnification rights. Strategic decisions made in the first 48 hours ripple through every subsequent legal matter. This article examines the five distinct legal proceedings that serious construction accidents typically trigger, how they interconnect, and the strategic coordination required to protect your interests across all of them simultaneously.

THE OSHA INVESTIGATION BEGINS IMMEDIATELY OSHA typically arrives within hours of serious accidents involving hospitalization, amputation, loss of an eye, or fatality. Under 29 C.F.R. § 1904.39, employers must report these incidents within specific timeframes—8 hours for fatalities, 24 hours for hospitalizations, amputations, or eye loss. The OSHA compliance officer has broad authority to inspect your site, interview witnesses, photograph conditions, and review safety records. Your response to this investigation creates evidence that may be used in every subsequent legal proceeding. Your site superintendent’s well-intentioned statement to the compliance officer—”Yeah, we told him to use fall protection, but he didn’t IN THE

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want to”—just became an admission in the civil lawsuit. The photographs OSHA takes of allegedly hazardous conditions may become plaintiff’s exhibits. The citations OSHA issues may become evidence of negligence per se in third-party liability claims. This is why proactive OSHA compliance matters more than reactive damage control. Companies that maintain comprehensive safety programs, conduct regular training, and document compliance (or noncompliance with progressive disciplinary actions) consistently fare better across all five legal proceedings. When OSHA finds extensive safety documentation, regular inspections, and evidence of enforcement, citations become more defensible. When they find gaps in your safety program, every other claim becomes stronger.

WORKERS’ COMPENSATION VS. THIRD-PARTY LIABILITY: THE COORDINATION CHALLENGE Florida’s workers’ compensation system, under Chapter 440, provides the exclusive remedy for employees injured during employment. The injured worker receives medical benefits and wage replacement regardless of fault but cannot sue their employer for negligence. However, workers’ compensation doesn’t eliminate your legal exposure—it shifts it. The injured worker can sue third parties whose negligence contributed to the accident. If you’re the general contractor and the injured worker is a subcontractor’s 30 | IN THE

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employee, you’re a third party. If you’re the property owner, you’re a third party. The plaintiff will claim you controlled the job site, created hazardous conditions, or failed to enforce safety standards. There is even the potential that the subcontractor could face civil tort liability notwithstanding worker’s compensation immunity if the employee can demonstrate that the injury (or death in the case of the employee’s estate) was “virtually certain” to occur due to the employer’s actions or omissions—which is tantamount to willful conduct on the part of the employer. This is an extremely high burden, and the employee (or their estate) must establish that the employee was unaware of the risk, and the employer concealed or misrepresented the danger. Meanwhile, your workers’ compensation carrier has a statutory right to subrogate against third parties. If they paid $500,000 in medical benefits and wage replacement, they’re coming after whoever they believe is responsible. You may find yourself simultaneously defending against the injured worker’s lawsuit and your own workers’ compensation carrier’s subrogation claim. The strategic challenge is that these proceedings have fundamentally different objectives. In the workers’ compensation proceeding, you may want to establish that the injury arose out of and in the course of employment—ensuring your employee receives benefits and cannot sue you directly, subject to the virtually certain exception. But that same evidence strengthens the argument that you controlled the work and are responsible to third parties.

This is why immediate coordination with all insurance carriers and defense counsel is essential. The statements made in the first 48 hours often lock you into positions that create conflicts across multiple proceedings.

SUBCONTRACTOR INDEMNIFICATION: YOUR CONTRACT MATTERS NOW Most construction contracts contain indemnification provisions requiring subcontractors to defend and indemnify the general contractor (and owner) for claims arising from the subcontractor’s work. When a subcontractor’s employee is injured, these provisions should provide protection. But Florida Statutes, § 725.06 prohibits indemnification for the indemnitee’s own negligence in construction contracts unless the intent to so indemnify is clearly and unambiguously stated. Courts strictly construe these provisions. Further, your contract’s indemnification language must also comply with § 725.06, or it may be unenforceable.

your negligence triggered the accident. If OSHA cites the subcontractor, you use those citations to enforce the indemnification provision. This interconnection means your response to the OSHA investigation directly affects your ability to enforce contractual protections. Companies that immediately secure their contractual protections, notify subcontractors of potential indemnification obligations, and document site conditions position themselves to enforce these provisions effectively.

INSURANCE COVERAGE FIGHTS: THE RESERVATION OF RIGHTS LETTER Within days of a serious accident, expect a reservation of rights letter from your liability carrier. The carrier agrees to defend you under a reservation of rights while they investigate whether the policy actually covers the claim. Common coverage disputes in construction accidents include: •

Even when indemnification provisions are enforceable, subcontractors frequently dispute their application. They argue that the general contractor’s negligence—not the subcontractor’s work—caused the injury. They claim you failed to provide a safe work environment, didn’t enforce safety rules, or allowed hazardous conditions to exist. The evidence from the OSHA investigation becomes critical in these disputes. If OSHA cites your company for violations, the subcontractor uses those citations to argue

• • • •

Whether the injury arose from completed operations or ongoing work; Whether your additional insured endorsements properly extend coverage; Whether the subcontractor maintained required insurance limits; Whether safety violations constitute policy exclusions; and Whether criminal charges trigger liability policy exclusions.

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defending claims without insurance funding. This is why verifying your own insurance and subcontractor insurance compliance before work begins is essential—once the accident occurs, coverage disputes are inevitable.

CRIMINAL LIABILITY EXPOSURE: WHEN ACCIDENTS BECOME PROSECUTIONS While rare, serious construction accidents can result in criminal charges. Florida prosecutors may pursue charges under workplace safety statutes or general criminal laws if they believe gross negligence or willful misconduct caused death or serious injury. The challenge is that criminal prosecutors have access to everything you said to OSHA, statements in civil depositions, and evidence gathered in other proceedings. Your Miranda rights don’t apply to OSHA interviews, civil depositions, or insurance statements. But anything you say in those proceedings can be used in criminal prosecutions. This is why immediate legal counsel is essential after serious accidents. Before anyone makes statements to OSHA, insurance adjusters, or opposing counsel, your counsel needs to assess potential criminal exposure and coordinate responses across all proceedings.

JOB SITE SHUTDOWN DECISIONS: OPERATIONS VS. EVIDENCE PRESERVATION After serious accidents, you face an immediate decision: shut down operations or

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continue work. This decision has significant implications. OSHA may order you to stop work in the immediate accident area, but continuing operations in other areas may destroy evidence, prevent thorough investigation, and appear callous in subsequent litigation. However, shutting down the entire project may breach contractual deadlines, cost tens or even hundreds of thousands of dollars in delays, and impact multiple subcontractors. The practical approach is to cordon off the accident area, preserve all evidence, thoroughly photograph, videotape, and document conditions, and continue operations only in areas that don’t impact the investigation. Your legal counsel should be involved in this decision immediately.

EVIDENCE PRESERVATION VS. INVESTIGATION NEEDS The tension between OSHA’s investigation needs and your evidence preservation obligations creates immediate challenges. OSHA wants to examine equipment, interview witnesses, and inspect conditions. But every interaction with evidence, every statement by witnesses, and every change to site conditions affects your defenses in other proceedings. Florida courts impose strict sanctions for evidence spoliation. If you alter conditions, discard equipment, or allow evidence to be destroyed, plaintiffs argue you’re hiding proof of negligence. But if you refuse OSHA access or delay their investigation, you face penalties and citations.

The solution is immediate documentation. Before OSHA arrives, photograph everything, secure all equipment involved, identify all material witnesses, and preserve all records. Create a chain of custody for critical evidence. Then cooperate fully with OSHA’s investigation, preferably with the assistance of counsel, while maintaining your own parallel documentation.

All media statements should be coordinated with legal counsel and should never discuss accident details, fault, or safety practices. These statements become evidence in every subsequent proceeding.

COORDINATION IS EVERYTHING

Serious construction accidents attract media attention. How you respond publicly affects jury perception in subsequent litigation, employee morale, client relationships, and your company’s reputation.

Companies that successfully navigate multiple proceedings understand that coordination is essential. Your OSHA response strategy must account for civil litigation implications. Your civil litigation strategy must consider workers’ compensation coordination. Your insurance claim handling must preserve indemnification rights. Your public statements must avoid creating admissions.

The worst response is “no comment”—it suggests you’re hiding something. But detailed statements create admissions that will be used against you. The balanced approach is expressing concern for the injured worker and their family, confirming you’re cooperating with authorities, and committing to a thorough investigation.

This coordination requires immediate involvement of experienced construction and OSHA counsel who understand how these proceedings intersect. The decisions made in the first 24-48 hours after a serious accident determine whether you’re defending manageable exposure or facing catastrophic liability across multiple fronts.

MEDIA AND CRISIS MANAGEMENT

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MEET THE

CONTRIBUTORS Amy L. Koltnow Partner/Business Unit Leader Orlando, FL Email Amy L. Koltnow

Amy Koltnow is a Partner and Business Unit Leader at Kelley Kronenberg and has over 30 years of legal experience. With a focus on all aspects of business law and litigation, Amy represents a diverse clientele, ranging from individuals to large corporations, in federal and state courts, arbitration, and administrative forums. Amy has proven herself as a trial attorney, handling complex and high-stakes bench and jury trials. Her wide-ranging expertise in different areas of litigation consistently delivers positive results for her clients, both at trial and on appeal. Additionally, Amy’s legal career includes serving as outside General Counsel

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for a Florida property & casualty insurance company, where she oversaw statewide litigation, established claims handling protocols, and provided strategic counsel to company executives. Her leadership in this role extended to guiding panel defense counsel and implementing solution-driven approaches. Amy holds a Bachelor of Science in Journalism & Communications from the University of Florida and earned her Juris Doctor degree from Stetson University College of Law. Her diverse background, coupled with her wealth of experience, uniquely positions her to provide strategic and effective legal counsel to her clients at Kelley Kronenberg.

Timothy D. Shields Partner/Business Unit Leader Fort Lauderdale, FL Email Timothy D. Shields

Timothy Shields is a Partner and Business Unit Leader in Kelley Kronenberg’s Fort Lauderdale office, focusing his practice on technology, intellectual property, and sports and entertainment law. With a unique blend of legal expertise and technical knowledge, Timothy provides comprehensive legal services in areas including copyright, trademark, the digital economy, data privacy, data breach response, and contract negotiations and disputes. In his role at Kelley Kronenberg, Timothy leverages his diverse background to represent a wide range of clients, including start-up companies, athletes, social media influencers, and content creators. He guides these clients through their distinctive business and personal legal challenges, offering tailored solutions that address the complexities of the modern digital landscape. Timothy’s practice also encompasses advising clients on critical cybersecurity and data privacy issues, ensuring compliance with regulations such as FTC guidelines, FERPA, and HIPAA. Prior to joining Kelley Kronenberg, Timothy spent a significant portion of his professional career at Nova Southeastern University and worked in software development. This background in technology and higher education provides him with valuable insights that inform his approach to intellectual property and data privacy law.

Timothy’s educational journey is as impressive as it is diverse. He earned his Bachelor of Science and Master’s degrees in Higher Education Administration from the University of Central Florida. He then obtained a Master’s degree in Computer Information Systems and a Doctorate in Organizational Leadership from Nova Southeastern University. While working full-time, Timothy pursued his law degree at NSU’s Shepard Broad College of Law, where he graduated summa cum laude and as Valedictorian. During his time in law school, he served as the Managing Editor of the Nova Law Review and received Highest Grade awards in multiple courses, including Civil Pretrial Practice, Professional Responsibility, Business Entities, Evidence, Legal Research and Writing I & II, Property, and Torts. He made the Dean’s List every semester, exemplifying his commitment to academic excellence. Timothy’s multifaceted background, combining expansive legal knowledge, technological expertise, and diverse educational achievements, positions him as a uniquely qualified attorney capable of addressing the complex legal challenges of the digital age.

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MEET THE

CONTRIBUTORS David S. Harvey Partner/Business Unit Leader Tampa, FL Email David S. Harvey

David Harvey is a Partner and Business Unit Leader at Kelley Kronenberg, focusing his practice on labor and employment law. Since 2001, he has been Board Certified in Labor and Employment Law by The Florida Bar. David’s practice is dedicated to representing employers in various employment and labor-related matters, including litigation, counseling, HR risk management, day-to-day advice, training, and policy development. He represents employers in state and federal courts across the United States and has advocated for them before key employmentrelated agencies such as the EEOC, DOL, NLRB, and FCHR.

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With over 30 years of employment and litigation experience, David is a seasoned attorney adept at managing and resolving complex litigation and compliance issues. He has extensive experience crafting fair and legally compliant employment strategies, union avoidance tactics, and improving working conditions for both large Fortune-rated companies and small businesses across the United States. David has successfully negotiated settlements in numerous HR disputes, ranging from a few hundred dollars to $30 million. David holds a Bachelor’s degree in Accounting from The University of Akron and a Juris Doctor from the University of Florida Law School.

Julie B. Karron Partner/Business Unit Leader Fort Lauderdale, FL Email Julie B. Karron

Julie Karron is a Partner and Business Unit Leader at Kelley Kronenberg. She focuses her practice on professional liability defense and civil litigation and serves as a Team Lead on the firm’s Fraud Fighters Team. She has nearly two decades of experience in complex insurance defense, commercial litigation, and professional liability defense. Julie excels in managing a diverse caseload, providing proficient defense in tort and catastrophic loss, construction accidents, premises liability, and professional liability. Her extensive experience includes defending wrongful death and catastrophic loss claims, representing general contractors and subcontractors in construction defects litigation, and managing high-stakes business disputes.

In her professional liability practice, she regularly handles matters on behalf of associations, businesses, contractors, developers, business owners, and professionals, including lawyers, accountants, physicians, insurance agents, appraisers, and real estate brokers. Julie graduated from Florida International University with a bachelor’s degree in criminal justice. She obtained her Juris Doctor from Nova Southeastern University Shepard Broad College of Law, where she was a member of the Moot Court Honor Society.

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MEET THE

CONTRIBUTORS Elizabeth P. Perez Partner/Business Unit Leader Fort Lauderdale, FL Email Elizabeth P. Perez

Elizabeth Perez is a Partner and Business Unit Leader at Kelley Kronenberg with a practice dedicated to health law and a member of the firm’s Business Legal Team. She brings over twenty-five years of comprehensive legal experience representing health care providers in regulatory compliance, commercial litigation, and criminal defense matters. Prior to joining Kelley Kronenberg, Elizabeth founded and managed her own boutique law firm specializing in health law and commercial litigation. Her experience includes practicing at some of South Florida’s most prestigious law firms, where she represented health care providers in license investigations and disciplinary actions before various professional boards, handled Medicare and Medicaid provider terminations and appeals, and advised clients on the ever-changing federal and state healthcare laws. She has also served as a Partner at a regional law firm and as an Associate at a large international firm, where she handled complex commercial litigation, health care regulatory compliance, and white-collar criminal defense. Elizabeth began her career as an Assistant Public Defender in the Eleventh Judicial Circuit, where

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she represented indigent clients in all aspects of criminal defense and brought more than fifty trials to verdict. Elizabeth is recognized as an AV Preeminent® attorney, which is the highest peer rating standard. This is given to attorneys who are ranked at the highest level of professional excellence for their legal expertise, communication skills, and ethical standards by their peers. Also, she has consistently received the South Florida Legal Guide “Top Lawyer” in Health Law recognition since 2015 to the present. She graduated from Florida State University with a Bachelor of Arts in Communication Studies and a minor in English Literature, where she served as President of Lambda Pi Eta Communications Honor Society. Elizabeth earned her Juris Doctor from The Florida State University College of Law, where she received the Florida MPLE Scholarship, the Torchbearer Leadership Award, and served as VicePresident of the Spanish American Law Student Association. Elizabeth is fluent in Spanish.

Elizabeth A. Yohe Partner/Business Unit Leader West Palm Beach, FL Email Elizabeth A. Yohe

Elizabeth Yohe is a Partner and Business Unit Leader at Kelley Kronenberg, where her practice is dedicated to the defense of workers’ compensation matters. She serves as a Team Lead on the firm’s Fraud Fighters Team. She brings extensive experience in all phases of workers’ compensation litigation from inception through trial, representing carriers, thirdparty administrators, and employers ranging from major corporations to small businesses. Prior to joining Kelley Kronenberg, Elizabeth opened and led a new Florida office for a national firm handling workers’ compensation cases. She previously served as a Partner at another law firm, where she gained comprehensive experience in workers’ compensation litigation, effectively negotiating settlements to mitigate risk exposure and implementing proactive communication strategies with clients. Her unique background also includes serving as Associate General Counsel and Director of Enforcement for E-Commerce, where she prepared foundational policies and agreements based on intellectual property and antitrust law. Additionally, she served as an Intelligence Analyst for the Federal Bureau of Investigation and as an

Investigator for the United States Department of Labor, where she researched and analyzed complex criminal, civil, and regulatory matters. Elizabeth earned her bachelor’s degree from DePaul University. She received her Juris Doctor from Tulane Law School. Elizabeth has received numerous awards recognizing her superior service, including multiple commendations from FBI personnel, a letter of commendation from the Assistant Director of the FBI Directorate of Intelligence, and a National Award from the Secretary of Labor. She was nominated by judges to participate in the Florida Office of Judges of Compensation Claims’ extended education program, recognizing her professionalism, community commitment, and potential to contribute to and lead the practice of workers’ compensation law. Her diverse background in federal law enforcement, intellectual property, and workers’ compensation litigation provides her with a comprehensive understanding of complex legal matters and investigative techniques that enhance her approach to workers’ compensation defense.

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MEET THE

CONTRIBUTORS Gary L. Brown Chair, Construction Law Division Fort Lauderdale, FL | Orlando, FL | Miami, FL | Naples | West Palm Beach, FL Email Gary L. Brown

Gary Brown is a Partner and Chair of Kelley Kronenberg’s Construction Law Division. His practice focuses on complex commercial and general business litigation, as well as OSHA compliance. He is Board Certified by The Florida Bar in Construction Law. Gary is also a Florida Supreme Court Certified Circuit Civil Mediator.

• Change Order Disputes • Construction Defect Claims • Construction Lien Claims • Delay, Inefficiency, and Acceleration Claims • Design Defect Claims • Insurance Claims • Payment and Performance Bonds

In his practice, Gary assists businesses with complex and routine construction-related matters, working closely with business owners, developers, general contractors, construction managers, and major subcontractors to identify and resolve project issues early on. He also represents municipalities and other local governments, as well as contractors, on public works projects, including the development of procurement documents, construction agreements, and design agreements. Gary’s public works experience also includes prosecuting and defending bid protests.

Gary’s practice also includes counseling clients in regulatory compliance with the standards and regulations enforced by the Department of Labor and OSHA. As part of his OSHA practice, Gary assists clients in establishing compliant safety programs; guides employers during OSHA inspections; and defends employers in OSHA enforcement actions.

Gary is an excellent source of guidance for his clients on transactional matters, furnishing them with both legal and business strategies that are tailormade to strategically advance their objectives. His expertise extends to the preparation, negotiation, and enforcement of contracts, covering a broad spectrum of legal disputes, including: 42 | IN THE

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Placing emphasis on client satisfaction, Gary establishes highly engaged relationships with his clients. He provides both on- and off-site counsel and daily guidance to clients on both small and large-scale projects, aiming to resolve disputes before crises occur. Through proactive problemavoidance measures, Gary helps his clients to maintain workflows, facilitating timely compliance with contractual and other requirements while minimizing risks.

BEHIND THE

BRIEFCASE ATTORNEY SPOTLIGHT

Danielle Cohen Higgins

Partner/Business Unit Leader Fort Lauderdale, FL dchiggins@kklaw.com Click here for Bio

Who has been a mentor or major influence in your career? My mother. Being raised by a single mom who was an immigrant with the most modest of beginnings, she taught me what it means to persevere. What is the most interesting or unexpected thing about your area of law? My clients. My clients are the most motivating and can be very interesting at times, for sure. Litigation is not for the faint at heart and it’s my pleasure to be their counsel through what can be a challenging or unexpected process. What’s a life lesson that has stuck with you over the years? Move with Purpose What’s your guilty pleasure or something you unapologetically love? Love is Blind/ Real Housewives of Miami What’s a proud moment—big or small—you love looking back on? My two kids regularly and repeatedly make me the most proud. Watching them learn and grow and just being their mom is always my most proud moments. What’s your favorite vacation spot, and why? Baha Mar (Summers) Aspen (Winters) If you could go back and give your younger self one piece of advice, what would it be? Chill Out!!!! If you weren’t a lawyer, what would you be doing instead? Interior Decorating If your colleagues had to describe you in three words, what would they say? Loyal, determined, and smart Favorite Quote? ”Success is moving from one failure to the next without losing enthusiasm.” - Winston Churchill What excites you most about the future of your practice area? While technology and AI bring sweeping change to the practice of law, nothing can replace the experience, presence, and effectiveness of an excellent trial attorney in a courtroom. I pride myself in being an excellent trial attorney. IN THE

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Business Legal Team ANGELO GASPARRI Business Transactions; Business Bankruptcy

AMY KOLTNOW

Complex Business Litigation

DAVID HENRY

General Liability; Professional Liability

MICHAEL WILD

VANESSA ROUSSO

AI Compliance; Business Transactions; Complex Business Litigation

EJOLA COOK

Business Asset Protection; Business Succession Planning

TIMOTHY SHIELDS

AI Compliance; Data Privacy & Cybersecurity; Intellectual Property

Construction Litigation & OSHA

JULIE KARRON

DAVID HARVEY

JASON VANSLETTE

General Liability; Professional Liability

Complex Business Litigation

Labor & Employment

ELIZABETH PEREZ Health Law

Call Now: 866-621-9301 NOW

GARY BROWN

Business Transactions; Complex Business Litigation

DANIELLE COHEN HIGGINS

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JOSH ROSENBERG

Business Succession Planning

Real Estate Litigation

HOWARD WANDER Workers’ Compensation

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AWARDS AND

ACCOLADES FIRM AWARDS Kelley Kronenberg has been the recipient of numerous awards and honors both firm-wide and for a number of our practices, including individual accolades. Below is a select list of recognition and awards:

2021 – 2025 Top Workplaces USA Energage

2020 – 2025 Top Workplaces Sun Sentinel

2019 – 2025 Best Law Firms U.S. News - Best Lawyers

2024 Top Performer Leadership Council on Legal Diversity

2012 – 2025 NLJ 500 The National Law Journal

2016 – 2024 Largest Law Firms Tampa Bay Business Journal

2025 Women Scorecard Law.com

2020 – 2022, 2024 Compass Award Leadership Council on Legal Diversity

2012 – 2024 Top Law Firms South Florida Business Journal

2022 – 2023 Best Places To Work New Orleans CityBusiness

2016 – 2024 Largest Central Florida Law Firms Orlando Business Journal

2021 Diversity Team Award Profiles in Diversity Journal

2017 – 2024 400 Largest Law Firms Law360

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with over

520

Employees

more than

the convenience of

Attorneys

Locations

240

18

Founded in 1980, Kelley Kronenberg is an award winning, multi-practice national law firm with 520 employees, 240 attorneys, and 18 locations throughout Florida and the United States. We are privileged to represent large public and private companies, small businesses, and individuals nationwide. With more than 40 practice areas, and growth on the horizon, we offer a comprehensive catalog of legal services to protect your legal interests in business and at home. Our firm is progressive and technologically advanced, while remaining true to our customer service heritage: integrity, ingenuity, and sincerity. Ever mindful of our history, but intensely committed to our future, we offer our clients a small firm feel with large firm resources.

OUR

LOCATIONS FORT LAUDERDALE

NEW YORK CITY

MIAMI

WEST PALM BEACH

ORLANDO

CHICAGO

NEW ORLEANS

INDIANAPOLIS

TAMPA

JACKSONVILLE

TALLAHASSEE

NAPLES

DAYTONA

MERRILLVILLE

DALLAS

SHORT HILLS

10360 W. State Road 84 Fort Lauderdale, FL 33324 Phone: (954) 370-9970

20 North Orange Avenue, Suite 704 Orlando, FL 32801 Phone: (407) 648-9450

1511 North Westshore Blvd., Suite 400 Tampa, FL 33607 Phone: (813) 223-1697

128 Orange Avenue, Unit 306 Daytona Beach, FL 32114 Phone: (754) 888-5437

111 Broadway, Suite 1205 New York, NY 10006 Phone: (845) 306-7867

20 N. Clark Street, Suite 1150 Chicago, IL 60602 Phone: (312) 216-8828

10245 Centurion Parkway N, Suite 100 Jacksonville, FL 32256 Phone: (904) 549-7700

233 E. 84th Drive, Suite 200 Merrillville, IN 46410 Phone: (317) 731-6243

220 Alhambra Circle, Suite 410 Coral Gables, FL 33134 Phone: (305) 503-0850

400 Poydras Street, Suite 2400 New Orleans, Louisiana 70130 Phone: (504) 208-9055

6267 Old Water Oak Road, Suite 250 Tallahassee, FL 32312 Phone: (850) 577-1301

5956 Sherry Lane, 20th Floor Dallas, TX 75225 Phone: (983) 999-4640

1501 Belvedere Road, Suite 500-504 West Palm Beach, FL 33406 Phone: (561) 684-5956

10475 Crosspoint Blvd., Suite 218 Indianapolis, IN 46256 Phone: (317) 731-6243

3080 Tamiami Trail E., Suite 322 Naples, FL 34112 Phone: (239) 990-6490

51 John F. Kennedy Parkway First Floor West Short Hills, NJ 07078 Phone: (908) 403-8174

BY APPOINTMENT ONLY ALBANY

401 New Karner Road. Suite 301 Albany, NY 12205 Phone: (845) 306-7867

ATLANTA

1100 Peachtree Street NE, Suite 200 Atlanta, GA 30309 Phone: (404) 990-4972

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WWW.KKLAW.COM | 800.484.4381