LIABILITY INSURANCE
Employment Practice Liability Insurance :
More Than Wrongful Termination And Sexual Harassment
Sexual harassment has been in the forefront of the news for some time and is also probably the first thing that comes to mind regarding Employment Practices Liability Insurance ( EPLI ). But EPLI covers a lot more ground , and that ground is expanding . The past several decades have brought new challenges and exposures to what falls under EPLI .
DISCRIMINATION
In 2014 , the Equal Employment Opportunity Commission filed the first lawsuit in its history challenging transgender discrimination under the 1964 Civil Rights Act . EPLI policies usually cover claims of employment-related discrimination based on the violation of any federal , state , or local law that prohibits discrimination on the basis of race , sexual orientation , color , marital status , creed , national origin , religion , gender , age , military service , disability , or pregnancy . Newer EPLI policies explicitly cover discrimination based on sexual preference or orientation .
Many EPLI policies also contain provisions that more generally extend coverage to “ other protected classes .” For example , a policy may afford coverage for claims based on “ nondescript ” discrimination . Directors and Officers policies also may apply when the discrimination comes from a corporate dictate .
SOCIAL MEDIA
Regrettably , employees can use social media to defame , disparage , or harass organizations as well as coworkers . What this means for employers is that a negative online comment about an employee could go viral . EPLI does not cover negative comments made by employees against one another , but it may protect employers when the coworker sues the employer for failing to prevent such harassment . When a manager is the one making the inappropriate comments , EPLI does cover the employer .
FAMILY AND MEDICAL LEAVE ACT ( FMLA ) VIOLATIONS
As the workforce gets older and employees defer retirement , requests for medical leave are on the rise as are the reasons for those requests . Some reasons are clearly justifiable but others are questionable . Unfortunately , a denial of leave is a potential for a claim against the employer and / or the individual manager or HR professional . In fact , many courts have
BY : MICHAEL TIEDT INSURANCE ADVISOR , PARTNER ,
SPECTRUM INSURANCE GROUP
ruled that individual liability attaches to those involved with FMLA decisions that affected aggrieved employees based on the FMLA definition of “ employer ,” which allows for personal liability of managers and company officials . Insureds , therefore , should look to their EPLI and D & O coverages to respond to such claims .
DATA BREACHES
Corporate data breaches are becoming more common or perhaps just reported more often . As the employer and / or executives shoulder the responsibility more often , they also incur the liability . Claims against the board or executives should be covered under most D & O policies , which typically do not contain data-breach or cyber exclusions , whereas claims against negligent employers or supervisors may trigger EPLI coverages .
ALTERNATIVE WORK ARRANGEMENTS
Alternative working arrangements — shorter workweeks ( longer hours over fewer days ), telecommuting , and staggered schedules — continue to increase in popularity , especially in urban areas . This means increased potential employer liabilities . Examples include discrimination as to which employees are allowed to participate in alternative work
26