At the 2018 CLM/Business Insurance Retail, Restaurant and Hospitality conference, a panel discussed emerging trends in employment law litigation. The panel included:
- Regan Katz – Managing Director; Wortham Insurance and Risk Management
- Carrie Kurzon – National EPLI Product Manager; Hartford Financial Products
- Nichole Thompson – Senior Claim Counsel; Travelers
- Tracy Wolf – Attorney; Lewis, Brisbois, Bisgaard and Smith LLP
- 2017 was the year of #metoo and all the attention this brought to the issue of sexual harassment. They have not seen an influx of sexual harassment claims because of this but most of this increased attention started in October so it is too early to tell. They do expect more retaliation claims as employees feel their performance reviews or career progress was impacted adversely by them filing a complaint.
- Existing sexual harassment claims have become harder to settle as demands have increased because plaintiff attorneys see an opportunity with the increased awareness on this topic from potential jurors.
- Under the new tax laws, settlements for sexual harassment claims can no longer be deductible as a business expense. Lawyers will be challenged to come up with new wording that settles these claims while also not impacting their client’s business.
- Wage and hour claims are always an issue and continue to be seen. Some attorneys specialize in these claims and they are always looking for potential clients.
- Race and gender discrimination cases are still common EPL claims. They expect to see more transgender claims in the future as awareness of this issue expands.
- They are seeing more class action claims on EPL issues alleging a toxic work environment, including patterns of sexual harassment and discrimination. This is expected to continue.
- If the allegation is sexual assault vs sexual harassment the employee can get quicker access to the courts without going through administrative processes associated with EEOC complaints.
- There was a big increase in the size of the largest settlements in the EPL area compared to prior years. This trend is expected to continue.
- When the EEOC gets involved, problems at one location can expand to your entire operation very quickly. If they see a questionable practice in one place they will start looking across your enterprise.
- There is increased litigation around medical marijuana and failed drug tests. In the past, these decisions usually came down in favor of the employer but they are starting to see more courts side with employees on allegations of wrongful termination or refusal to hire.
What carriers look for
The years of carriers just checking the box that employers have EPL policies in place are past. Now underwriters want to have meaningful conversations with risk managers. If there were complaints they want to see how those were handled. They are also taking a deeper dive into the policies and procedures that companies have in place to get a better understanding on how they actually operate.
- Be careful to avoid using gender stereotypes and comments in performance reviews. There were some big verdicts last year involving comments about someone not being feminine or masculine enough actually being made in performance reviews.
- There should be training on sexual harassment but also on retaliation. Retaliation claims are growing in relation to all types of EPL claims.
- Sensitivity training on LGBTQ issues is also lacking for many businesses and is a growing area of concern.
- Education around workplace etiquette is another area ripe for additional training as this can help people avoid heading down a path that can lead to litigation.
- Asking hourly employees to do any work including prep work off the clock will get you in trouble on wage and hour issues.
- Misclassifying drivers as independent contractors remains an issue in the trucking and shipping industries.
- The number of wage and hour lawsuits keeps increasing. There were ten times as many of these claims in the 2000s than in the 1990s. Employers need to carefully follow the law in these areas or they could end up facing both individual and class action lawsuits.
- Many carriers will not cover wage and hour issues so know what your policy covers. You could face a large, uninsured exposure.
- Arbitration is a great tool for resolving these cases. You avoid having the emotional appeal to the jury. Having an arbitration clause in your EPL policies is something to consider.
- Mediation with the EEOC is worth the effort. It gives you the opportunity to better understand the issues and can move things along quicker.
- Things on text messages that employers are not aware of often come up in litigations. Be ready for surprises.
- In many states, zero tolerance drug policies will be increasingly challenged. There will be a need to show someone was impaired by the drugs, not just that the drugs were present in their system. Employers cannot test for one legal drug “marijuana” and not another “opioids”.