Employment Practices Liability Exposures and Insurance Coverage Course Outline

Introduction and Overview
Common Law EPL Exposures (Part 1)
1. Discrimination
  1. Disparate Treatment Discrimination Claims
  2. Disparate Impact Discrimination
2. Wrongful Termination
  1. Corporate Restructuring
  2. The Employment-at-Will Doctrine
  3. Legal Grounds for Termination
3. Sexual Harassment
  1. Quid Pro Quo Sexual Harassment
  2. Hostile Environment Sexual Harassment
Common Law EPL Exposures (Part 2)
1. Retaliation
  1. Elements of a Retaliation Claim
  2. Types of Retaliation Claims
2. Inappropriate Workplace Conduct
  1. Assault and Battery
  2. Defamation
  3. Invasion of Privacy
  4. Fraud/Misrepresentation
  5. Negligence
  6. Intentional or Negligent Infliction of Emotional Distress
  7. Bullying
  8. Breach of an Employment Contract
  9. Coercion
  10. Wrongful Failure To Employ
  11. Wrongful Failure To Promote
  12. Wrongful Discipline
  13. Wrongful Deprivation of a Career Opportunity
  14. Wrongful Failure To Grant Tenure
  15. Negligent Evaluation
Statutory Law EPL Exposures
1. The Fair Labor Standards Act of 1938
  1. Exempt versus Nonexempt Employees
  2. Wage and Hour Claims
2. The Equal Pay Act of 1963
  1. Damages Recoverable under Equal Pay Act
3. Title VII of the Civil Rights Act of 1964
  1. Application of Title VII
  2. Definition of "Agent": Individual Supervisor Liability
  3. Potential Damages
4. Age Discrimination in Employment Act (ADEA) of 1967
  1. Application of ADEA
  2. Potential Damages
5. The Americans With Disabilities Act (ADA)
  1. The Two Key Requirements
  2. ADA Application
  3. Potential Damages
6. The Family and Medical Leave Act (FMLA) of 1993)
  1. Application of FMLA
  2. The Problem of Intermittent Leave
  3. Damages Recoverable under FMLA
7. The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994
  1. What is the Magnitude of the Exposure?
  2. The Purpose of USERRA
  3. Who is Covered by USERRA?
  4. Employer Eligibility
  5. Employee Eligibility
  6. Advance Notice Requirements
  7. An Employee’s Rights upon Returning to Work
  8. When Reemployment is Excused
  9. Changed Circumstances
  10. Undue Hardship
8. The Genetic Information Nondiscrimination Act of 2008
  1. Application of GINA
9. Liability under State and Local Statutes
  1. Fair Employment Practices Laws
  2. Whistle-Blower Statutes
  3. Public Policy Protection
Rating and Underwriting Employment Practices Liability Coverage
1. The Rating Basis for EPLI Policies
  1. Jurisdiction
  2. Industry
  3. Number of Employees
  4. Leased Employees
  5. Union Employees
  6. Profitability
  7. Mix of Exempt and Nonexempt Employees
  8. Claim History
  9. Written Procedures
  10. Turnover and Termination Rates
  11. Plans for Staff Reductions and Layoffs
  12. Corporate Culture
2. Renewal Underwriting: Assessing Change
Employment Practices Liability Loss Control
1. Effective Hiring
  1. Test for Skills
  2. Avoiding Discrimination Allegations Associated with Skills Testing
  3. Test for Personality/Character
  4. Interviewing and Background Checking
2. Using Protective Legal Documents
  1. Have Employees Sign "At-Will" Employment Agreements
  2. Avoid Implied Promises of "Permanent" Employment
  3. Audit Employee Handbooks
  4. Include a "Management Rights" Provision in Written Material
  5. Require Employees To Sign Mandatory Arbitration Agreements
  6. Use Legal Counsel To Review Employer-Produced Material
3. Preventing Wrongful Termination Claims
  1. Conduct Periodic Performance Evaluations
  2. Avoid Knee-Jerk Terminations
  3. Consider Alternatives to Termination
  4. Be Consistent in Making Termination Decisions
  5. Educate and Assist Managers in the Termination Process
  6. When, Where, and How To Fire
  7. Use Counseling, Employee Assistance, and Outplacement Programs
4. Preventing Claims from Providing References
  1. The Defamation Exposure
  2. The "Wrongful Hiring" Exposure
  3. Obtain Releases as a Condition of Providing References
  4. Programs
5. Preventing Sexual Harassment Claims
  1. Develop a Written Sexual Harassment Policy
  2. Communicate the Policy
  3. Train Supervisors in Implementing the Policy
  4. Develop a Confidential Complaint Procedure
  5. Investigate Complaints
  6. Document Investigations with Care
  7. Take Prompt, Appropriate Actions Following Investigations
  8. Continuously Review the Policy
Employment Practices Liability Coverage Options
1. The Lack of EPL Coverage under CGL Policy Forms
  1. CG 21 47 (7/98): The Employment-Related Practices Exclusion
2. Stand-Alone EPLI Policies
  1. Pros
  2. Cons
3. Employment Practices Liability Coverage under D&O Policies
  1. Limitations of EPL Coverage under D&O Forms
4. Employment Practices Liability Endorsements to D&O Policies
  1. The EPLI Coverage Endorsements
  2. Pitfalls of D&O Coverage Endorsements
5. Management Liability Policies
  1. Basic Structure
  2. Cost Advantage
  3. Limited Eligibility
6. EPLI Coverage under Businessowners Policies
  1. What Are BOPs?
  2. Eligibility
  3. How Employment Practices Liability is Covered under BOPs
  4. Coverage Aspects
Covered Organizations, Covered Persons, and Covered Acts Provisions in Stand-Alone EPL Policies
1. Covered Organizations
2. Covered Persons
  1. Definition of "Employee"
3. Covered Acts
  1. Discrimination
  2. Wrongful Termination
  3. Harassment
  4. Retaliation
  5. "Inappropriate Employment Conduct"
4. An "All Risks" EPLI Policy: The Ultimate Scope of Coverage
  1. One Final Caveat: Check the Scope of Policy Exclusions
Third-Party Liability, Covered Damages, and Definition of "Claim" Provisions in Stand-Alone EPL Policies
1. Third-Party Liability Coverage
  1. Third-Party Liability Claims: Two Examples
  2. The Need for Third-Party Liability Coverage
  3. How Third-Party Liability Coverage Is Provided within EPL Forms
  4. Scope of Third-Party Liability Coverage
2. Covered Damages Definition
  1. Punitive Damages
  2. Fines, Penalties
  3. Stock Benefits
  4. ADA-Associated Costs
  5. Non-pecuniary Relief
  6. Damages Associated with Employment Contracts
  7. Insurance Plan, Pension, or Savings Plan Benefits
  8. Costs Relating to Labor Disputes
3. Claim Definition
  1. Coverage for Written and Oral Demands
  2. Coverage for Administrative Hearings
  3. Coverage for Criminal Proceedings
Claims Management, Defense Cost, and Special Conditions in Stand-Alone EPL Policies
1. Claims Management Provisions
  1. Claims Settlement Procedures
  2. Duty To Defend Language versus Non-Duty To Defend Language
  3. Defense Cost Provisions
2. Special Conditions
  1. Provisions that Reduce Deductible Amounts under EPL Policies
  2. Other Insurance Provisions
  3. Loss Control Services
Exclusions in EPL Policy Forms
1. Criminal, Fraudulent, or Intentional Acts
2. Bodily Injury
  1. Key Exception Language
3. WARN Act Liability
  1. Favorable WARN Act Language
4. Liability under Workers Compensation and Similar Laws
  1. Exception Language for Retaliation and Other Types of Claim
5. Contractual Liability
  1. Exception for Liability in the Absence of a Contract
6. Americans With Disabilities Act (ADA)
  1. Coverage Is Not Excluded for Discrimination Based upon Disability
  2. Exception Wording Covers Defense Costs
7. Strikes and Lockouts
8. Wage and Hour Claims
  1. Coverage for Defense of Wage and Hour Claims
9. Prior Knowledge of Potential Claims
  1. Problems with the Prior Knowledge Exclusion
10. Nonpecuniary Relief
  1. Exception for Defense Costs
11. Breach of Employment Contracts
  1. Defense and Indemnity Cost Exception for "Implied" Contracts
  2. Defense Cost Exception for "Explicit" Employment Contracts
12. Insurance Benefits
  1. Exception for Coverage of Benefits as a Part of Claim Settlements
Coverage Triggers in EPL Policies
1. Operation of Claims-Made Coverage Triggers
  1. Retroactive Dates
  2. Discovery Provisions
  3. Extended Reporting Periods