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Special Section—PLUS 2006 Ever-expanding EPL Religious discrimination, monitoring e-mail, employee loyalty are key concerns By Phil Zinkewicz Employment Practices Liability (EPL) is an exposure that has grown rapidly in the last two decades. Initially, EPL dealt with two basic areas: equal opportunities for employment and employment discrimination in the workplace. Since then, the line has branched out to include wrongful termination in terms of age discrimination and sex discrimination in the workplace, sexual harassment in the workplace and a host of other potential liabilities that professional liability underwriters are dealing with every day. At this year’s PLUS annual meeting, one panel will examine EPL and the newest “hot spots” that employers and their insureds must consider—not only when putting together the proper insurance coverages, but also when constructing a corporate culture that might mitigate the possibility of EPL claims. Moderating the panel will be Richard Lehr, shareholder of Lehr Middlebrooks & Vreeland, a Birmingham, Alabama-based specialty labor and employment firm that works on behalf of employers throughout North America. Included in the panel are: Thomas Hams, managing director/national practice leader, Aon Financial Services Group, Elmhurst, Illinois; Terrence McInnis, partner, Ross, Dixon & Bell, LLP, Irvine, California; and Robin Symons, equity partner, Epstein Becker & Green, P.C., Miami, Florida. Among the topics this panel will discuss are: religious discrimination, Internet application processes, who constitutes an employee, regional trends and whistle blower retaliation. “Our overall approach will be to look at the emerging flash points for potential employee claims,” says Lehr. “For example, in June of this year, the Supreme Court expanded the rights of individuals to bring retaliation claims. This is a situation in which an employee engages in an activity that is considered that person’s right to complain, and then the company retaliates in some way, trying to stop that employee. Right now, 30% of all discrimination claims filed with the EEOC involve retaliation. This decision could increase that percentage.” Lehr says that religion has become a concern among employers and their insurance carriers. “The expanded scope of religious beliefs and practices and how employers must address these things at the workplace have become another hot spot. Some religious beliefs require a worker to pray at certain intervals. There is the issue of proselytizing in the workplace and religious harassment that might result. What happens if an employee proselytizes another employee? What are the employees’ rights to do that?” Another area of concern, according to Lehr, is the projected economic slowdown in 2007. “In economic slowdowns, when people have to be let go, age discrimination lawsuits tend to spike up. Age claims need to be evaluated because they can represent a significant portion of an EPL carrier’s claims portfolio. In these cases, juries often empathize with the older person who has alleged age discrimination.” Yet another “flash point,” according to Lehr, involves an employee’s duty of loyalty to the employer. “It can be something as simple as an employee saying to other employees, ‘The people who run this company don’t know what they’re doing. They’re going to let this company go down the drain.’ Where does an employee’s right to voice an opinion cross the line in a way that will allow employers to take action against what they consider a disruptive employee?” Technology has become an issue in EPL, says Lehr. “What parameters are employers allowed to set down in terms of monitoring employee use of technology in terms of things such as e-mail and protection of information? Many employers think of e-mail as the same as phone conversations. The truth is, e-mail is a document just the same as a company memorandum. Employers are very careful about what they put into their memos. They should be equally as careful as to what goes into e-mails.” Lehr says that each of his panelists will speak for about 10 minutes on one or more of these subjects. Then, he will offer follow-up questions and open up the panel for a give and take. A question and answer time will be afforded to the audience. “What I want to do is address the issues involved in EPL. Even if the panel can’t come to a consensus on a particular issue, at least it will provide food for thought. The issues at stake for employers and their insurance companies are colossal.” * |
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