Nonprofit Leaders Need Protection

The National Center for Charitable Statistics estimates there are more than 1.5 million nonprofit organizations in the United States. This diverse group includes:

Public charities
Private foundations
Clubs
Service/member organizations
Private educational institutions
Labor unions
Shelters
Civic leagues

While the sizes and types of these nonprofits are extremely broad, they all share one characteristic: the need for liability protection. Unfortunately, there’s a widespread belief that directors and officers of nonprofits don’t have any exposure to personal liability. That is not the reality.

In fact, 63% of nonprofit organizations reported a directors and officers (D&O) liability claim in the past 10 years — two times higher than the percentage of claims in the for-profit sector.

Misconceptions about liability risk

There are numerous myths about the exposures nonprofits face. Below are some common misconceptions about nonprofit organizations’ liability risks, and the truth about those risks.

Myth 1: Because most directors and officers of nonprofits are volunteers, they are not liable for their actions.

The Volunteer Protection Act (VPA) and other similar laws are limited and do not completely protect the directors and officers of nonprofits. Although the VPA does provide some immunity to volunteers acting on behalf of agencies, it doesn’t offer immunity to the organization itself. As a result, insurance is needed to protect the organization and its employees and pay for the legal defenses of volunteers facing liability claims.

Myth 2: Nonprofit organizations have a lower risk of litigation losses than for-profit companies.

Directors and officers of nonprofits are actually at higher risk. The problem stems from the fact that many nonprofits:

Don’t minimize litigation exposures the way corporations do
Don’t fully understand their vulnerabilities
Don’t carry the appropriate insurance coverage
Don’t routinely perform comprehensive risk assessments
Mistakenly believe their D&O risks are covered under another insurance policy

Myth 3: Directors and officers can’t be held personally liable.

The truth is that anyone involved in managing a nonprofit organization can be held personally liable for any failures of oversight or misconduct that occur while they are in charge. The organization and its directors and officers can be sued for a long list of issues, including mismanagement of assets, harassment, neglect, wrongful termination, breach of duty, mistakes in judgment, misleading statements and improper conduct.

Myth 4: The absence of shareholders reduces risk and the need for D&O coverage.

Any number of stakeholders can file a lawsuit, including donors and contributors, beneficiaries, regulatory bodies, state attorneys general, association members, third-party affiliates, vendors, fundraisers and current or former employees.

So what’s the solution to managing such broad liability risk?

Protection for nonprofit organizations

The first step in any good risk management effort is prevention. That typically entails well-conceived policies that are written and disseminated to all participants in a nonprofit’s affairs. Those protocols should be reviewed by a compliance attorney, and adherence to policies should be documented and memorialized in a disaster-proof location. Everyone from the highest officials of the organization to the newest volunteers should be educated on procedures and best practices and sign an acknowledgment of their understanding.

But even with consistent application of best practices, claims against the board, its individual members and executives can (and frequently do) occur. For this reason, all nonprofits should carry some level of D&O liability insurance.

D&O insurance policies can be written to protect a nonprofit’s board officers and directors, and the entire organization from liability claims. D&O liability insurance covers claims that come from management decisions and helps with defense costs, settlements and judgments.

D&O insurance covers actual or alleged wrongdoing in two main areas:

Governance liability: general governance decisions
Fiduciary liability: alleged fraud and improper financial oversight, including violations of the Employee Retirement Income Security Act

In addition to D&O insurance, nonprofit organizations should consider the following management liability coverages:

Employment practices liability insurance (EPLI): Most claims covered under D&O policies arise under the employment practices liability (EPL) banner, which covers claims alleging wrongful acts related to employment. These claims are the most frequent, time-consuming and costly. The most common types of EPL claims include sexual harassment, racial and gender discrimination, retaliation, defamation, wrongful termination, failure to accommodate the Americans with Disabilities Act, and improper classification of employees.

Cyber liability: Every organization that uses technology faces cyber risk, and these threats get more serious as technology gets more complicated. Cyber liability coverage is vital because organizations must be prepared for data breaches. Cyber policies cover the breach of donor, employee and confidential client data, as well as paper document exposures.

Employee dishonesty: This coverage (also called crime coverage or a fidelity bond) helps replace money stolen by employees. Because this type of fraud typically takes place over a long period of time, a great deal of damage can be sustained by the nonprofit directly, as well as the trust between the community and the organization.

D&O liability insurance is never cookie-cutter. Every organization faces its own exposures and has specific needs. Review your nonprofit clients’ particular operations, processes and personnel to help determine what mix of protection the leadership and organization needThis content is for informational purposes only and not for the purpose of providing professional, financial, medical or legal advice. You should contact your licensed professional to obtain advice with respect to any particular issue or problem.

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