Employment Practices Liability Explained: What You Need to Know

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Text: Wednesdays with Woodward (registered trademark) Webinar Series. A red mug with the Travelers umbrella logo in white sits next to an open laptop displaying the Wednesdays with Woodward slide. Logo: Travelers Institute (registered trademark). Travelers. Text: 15 Years. Joan Woodward appears in a video call tile in the upper right of the slide, wearing pearls. 

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JOAN WOODWARD: Good afternoon, everyone. Thank you so much for joining us. I'm Joan Woodward, and I'm honored to lead the Travelers Institute, the public policy division and educational arm of Travelers. Welcome to Wednesdays with Woodward, a webinar series where we convene industry experts about conversations for today's biggest challenges. We're so glad you're here. 

Before we get started, I'd like to share our disclaimer about today's program.

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Text: About Travelers Institute (registered trademark) Webinars. The Wednesdays with Woodward (registered trademark) educational webinar series is presented by the Travelers Institute, the public policy division of Travelers. This program is offered for informational and educational purposes only. You should consult with your financial, legal, insurance or other advisors about any practices suggested by this program. Please note that this session is being recorded and may be used as Travelers deems appropriate. The next slide reads, Employment Practices Liability Explained: What You Need to Know, and displays the logos for the Travelers Institute, TrustedChoice dot-com, MetroHartford Alliance, C.B.I.A., the Insurance Association of Connecticut, and the National Association of Professional Insurance Agents. 

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I'd also like to thank our webinar partners today, the Connecticut Business and Industry Association, the Insurance Association of Connecticut, TrustedChoice.com, MetroHartford Alliance and the National Association of Professional Insurance Agents. 

So as everyone knows, today's labor market and workplace laws are rapidly evolving and increasingly complex. From hiring to firing, to promotions and workplace culture, businesses face daily decisions that affect their employees and could lead to claims of wrongful employment practices for even the best-intentioned employers.

Economic conditions, societal trends and the ever-evolving legal environment have led to employment practice claims increasing over the years. Employment-related claims impact organizations of every size and in every industry and can disrupt businesses, hurt employee morale, for sure, damage reputations and cost businesses financially before even going to court.

With over 80,000 U.S. workplace discrimination charges filed in 2023, understanding employment practices liability, or EPL, is crucial for employers of all sizes. Today, we're going to take a deep dive and look at current trends in employment-related insurance claims, recent legal changes that you need to know about and strategies that employers can use to reduce employment liability risk.

Joining me for that discussion today are two experts in employment practices liability. 

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The next slide reads, Speakers, and displays the headshot photos of the three speakers, including Joan. Text: Joan Woodward, Executive Vice President, Public Policy; President, Travelers Institute, Travelers. Chris Williams, Employment Practices Liability Product Manager, Travelers. Sarah Skubas, Attorney-at-Law, Jackson Lewis. 

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Sarah Skubas is a partner with the law firm of Jackson Lewis, a national law firm focused on employment and labor law. Sarah's practice is focused on employment litigation. She defends employers in a variety of industries, including health care, higher education, restaurants, nonprofits, manufacturing, against claims of discrimination, harassment, retaliation, wage and hour violations, and state and federal FMLA violations. 

That's a mouthful. That's a lot, Sarah. She also assists employers in providing preventative counseling, preparing employee handbooks and policies and procedures, and advising on personnel matters. So welcome, Sarah. We're really thrilled you're joining us today.

Next up, we have Chris Williams. He's an Assistant Vice President for Executive Liability and Employment Practices Liability Product Manager for Travelers. In this role, he's responsible for employment practices, underwriting strategy, marketing, training and consultation on complex EPL accounts.

Chris has been with Travelers for almost 25 years. So he's going to start us off with a level set on the EPL landscape, what we're seeing today, followed by, then, Sarah, who will share with us some top takeaways from the Jackson Lewis mid-year legal update that they just published. So, Chris, welcome. Sarah, welcome. And the virtual floor is yours. Take it away.

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Chris appears in a video call tile, wearing a blazer over a blue button-down. Slide text: Employment Practices. Employment Practices Liability (EPL) insurance provides coverage for legal costs and damages related to various employment related claims, including allegations of wrongful termination, discrimination, sexual harassment, and retaliation. Federal Status: Title Seven of the Civil Rights Act, Pregnancy Discrimination Act, Americans with Disabilities Act, Age Discrimination In Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Equal Pay Act, Genetic Information Non-Discrimination Act. State statutes may create additional exposures. Retaliation. The slide has the red Travelers umbrella logo. 

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CHRIS WILLIAMS: Thanks, Joan, for having me. I really appreciate it. So I thought I'd just start off talking a little bit about what EPL insurance actually is. So EPL is designed to cover insurance-- or to cover employers who see claims brought by their employees, their former employees or applicants for things like wrongful termination, discrimination, sexual harassment and retaliation. 

And what the policy generally covers is defense expenses, so the cost of a lawyer to respond to the lawsuit or the EEOC charge or the demand that comes in, the damages themselves, which would generally, in most EPL cases, include things such as lost wages, emotional distress damages, or the claimant may have damages for damage to their reputation. Under most employment statutes, the claimant's also entitled to their attorney's fees if they prevail in the claim.

Most employees are at-will employees. And what that basically means is that the employee or the employer can terminate the employment relationship at any time. But there are exceptions to that about when the employer can actually terminate that relationship.

So, for example, Title VII of the Civil Rights Act prohibits an employer from discriminating against an employee on the basis of their national origin, color, race, religion and sex. So an employer could not terminate an employee on that basis.

Say, the statute goes a little broader than that, though, because it doesn't just apply to hirings and firings and terminations. But it also applies to promotion, pay, benefits and the working conditions overall. And it also prohibits harassment based on those protected characteristics.

If an employee wants to pursue a claim under Title VII, you don't just go out and file a lawsuit. One of the prerequisites is the employee has to file a charge with the Equal Employment Opportunity Commission. One of the things the EEOC does is, when they settle cases, they generally publish those results.

So I thought it might just be helpful for the audience to give you a couple examples of some of the claims they published. And these aren't hard to find. If you go on the EEOC website and you look in their newsroom, you can see all the settlements they've entered into.

So I'll give you a couple examples. Was a restaurant, a franchise restaurant. The owner instructed the general manager not to hire minority workers. And he used derogatory language about minority workers that were working in the establishment. As a result, the EEOC brought a claim.

It's almost a little shocking to me that these things still happen in today's environment. You think we would have been past that. But we certainly do continue to see those claims, unfortunately.

Second example-- a construction company. They were playing music on the shop floor that contained sexually suggestive nuances and derogatory language about women. One of the female employees complained about that language. And management didn't do anything. So two problems with that. One, the music was allowed to be played in the first place. And two, once management was aware of it, they failed to take any action to stop that.

The third example was by a chef against a restaurant. He was hired, and he did not work Sundays for religious reasons. A new manager came into the organization and instructed the chef that he did, in fact, have to work on Sundays.

See, this is fairly common, where you have a new manager comes in, maybe without adequate training, and tries to put their footprint on the organization. And in this case, the employee was entitled to an accommodation. And they failed to grant it. And they faced an EEOC claim.

So there's a couple other examples of statutes that provide protection to employees and applicants. So the Pregnancy Discrimination Act prohibits discrimination on the basis of pregnancy and child-related-- childbirth and related medical conditions.

The Americans with Disabilities Act prohibits discrimination on the basis of somebody's disability. And it requires employees to provide accommodations for those disabilities unless it causes an undue hardship. So you've probably read about things like that, Joan, where it's things like maybe putting in wheelchair ramps, giving an employee extra time to complete a task, maybe providing technology that's accessible or things of that nature. Could also be asking-- allowing the employee to work from home for a certain period of time.

Age Discrimination and Employment Act. That prohibits discrimination against those over 40 years old. So we see a number of those claims for older workers. You may remember people were going, OK, Boomer, when older people said things, calling somebody "grandma" or "grandpa" in the workplace, asking people when they're going to retire.

In the interest of time, I wasn't going to go through all of these. But that's just some high-level statutes that apply. All of those statutes also prohibit retaliation. So if an employee complains about retaliation and the employer takes an adverse action-- it doesn't have to be a termination. It could simply be relegating them to the basement, like the Office Space movie, giving less desirable work assignments or things of that nature. That constitutes retaliation.

Surprisingly, in over half the EEOC charges that are filed, they include allegations of retaliation. So we see claims where a company will get an EEOC charge and the first thing the company does is they fire the individual that brought the charge. If there's any takeaway from this discussion today, that is a big no-no from an EPL perspective.

Broadly speaking, I'd say there's really three issues that give rise to employment claims overall. One, the employer simply does not follow the law. Law can be complicated. And employers may not have the resources to stay up to date on what their obligations are under the law.

Say, the second thing is rogue employees. And that may connote a Pirates of the Caribbean theme, which is not my intent. It's really just employees acting in the workplace that are acting outside what would be considered norms for civilized society. And those employees can create real significant exposure for the employer overall.

And the third one is really just factual disputes overall between employees and employers. An employer may decide that the employee is not qualified to do their job and make a decision to terminate the employee based on their performance to date. And the employee could view that as discriminatory. And that's a factual issue about what really drives that termination.

Sometimes employers don't follow their own obligations under the law, what their own policies and procedures might require. We see a number of claims, for example, where the employer will say, well, they were a terrible employee. They didn't do A, B, C and D. And then you go back to look at the performance reviews, and they're stellar for the last five years. So that creates a factual dispute.

And finally, I'd say a number of employers may decide they're trying to be kind, and they lay off an employee rather than firing them, saying, we're doing this because of economic constraints. And then, two months later, they hire a replacement of a younger worker or somebody that's not in a protected class. And that can give rise to a factual dispute and create exposure for the employer.

So that's my brief view of the world overall from an EPL perspective. And let me turn it over to Sarah for her mid-year legal review on the state of EPL. Thank you.

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Sarah appears in the video call tile, wearing glasses and a black blazer. Her first slide has a photo of the white columns of a court building. Text: Supreme Court Reins in Federal Agencies. 

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SARAH SKUBAS: Great. Thanks so much, Chris and Joan, for having me here today. I have a lot to talk about, so we're going to jump right in. I want to start with the Supreme Court and a recent decision reining in federal agencies. 

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Text: The Demise of Chevron Deference. More challenges to federal rules likely, Rules already under challenge: Pregnant Workers Fairness Act regs, Rules setting salary floor for exempt status; defining "independent contractor" under FLSA, D O L's ESG rule, NLRB joint employer rule, OSHA "walkaround" rule. Skidmore "deference" may apply. Less deference equals less predictability. Jackson Lewis P.C. 

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So essentially, we're going to call it the demise of the Chevron deference. I'm going to try to make it not too legalese. Basically, there had been this long-standing decision from a court case back in 1984 that we call the Chevron deference. And essentially, that court case, for over 40 years, gave federal agencies deference to their rulemaking. 

So when agencies implemented rules interpreting statutes like Title VII or the FLSA, the courts gave deference to the agencies in their own interpretation. And so when those rules were challenged, courts said, no, we've got to give some deference to the agencies on their own interpretation, which made it really hard for challenges to those rules to be successful.

And so, this year, we saw the Supreme Court overturn that Chevron deference and rejected that doctrine. And it's a pretty landmark decision. You're going to see it-- it already has been-- it will continue to challenge rules like the Pregnant Workers Fairness Act, which we're going to talk about today, the Department of Labor's minimum salary rule that's affecting a lot of employers today, and a lot more.

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Text: Employer Takeaways. The decisions do not strike any employment regulations... yet. Continue to follow agency regulations and guidance unless and until a court rejects these interpretations. Employers currently in litigation may consider challenging the rule in question. Employers currently in agency litigation where civil penalties may be assessed may consider challenging the proceeding. Opportunity: There may be an opening to bring facial challenge to problematic longstanding regulations. In the immediate term, uncertainty. We wait for the dust to settle (or to get stirred up!). Jackson Lewis P.C. 

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Some of the key takeaways-- moving along-- to-- as a result of this Supreme Court decision. Like we said, a lot is in play. The decisions aren't striking any employment regulations yet. There have been challenges to some of these key laws. But for the most part, a lot are still in play. 

But we're going to see a lot of legal challenges to these agencies. And there's a lot of uncertainty for employers as a result. When agencies used to issue rules and regulations, we kind of thought, well, they have a lot of deference. We're going to assume they're going to be enforceable and in play. And with that gone, we're going to see a lot of legal challenges and a lot of uncertainty.

So employers are watching the dust settle, watching a lot of these litigations around all of these agency rules that affect a lot of employers' day-to-day operations. It's a really big thing we're going to continue to watch.

Moving along, one of the biggest rules and regulations that's affecting a lot of employers right now is the Pregnant Workers Fairness Act rule.

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An interstitial slide has a photo of a pregnant woman sitting in front of a laptop. Text: PWFA Final Regulations. The next slide says: Pregnant Workers Fairness Act: Final Rule Released. Employers must "make reasonable accommodations to the known limitations related to pregnancy, childbirth, or related medical conditions of a qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business." Jackson Lewis P.C. 

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And essentially, this was a rule that was adopted to fill gaps with that Title VII and ADA Chris was talking about, those protections that are afforded. 

And really, essentially, the goal of the Pregnant Workers Fairness Act, the PWFA, was to make sure that if you're pregnant, childbirth or related medical conditions, that employers are providing opportunities for those individuals to continue to work during their pregnancy or related conditions in a safe and a secure environment.

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Text: PWFA Regulations: Key Points. Broad definition of PCRMC. New definition of "temporary." Family members are not entitled to accommodations. Requesting an accommodation is now easier. Work at home and nurse at work. Change your documentation default settings - this is NOT the A D A. Jackson Lewis P.C. 

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And so it applies to 15 employees. And it does a lot of things. 

Basically, we've put it in a nutshell. But there's a lot more to it. The EEOC, in implementing these regulations, doubled down and really broadened the definition of pregnancy, childbirth and related medical conditions. That's that acronym, PCRMC. 

The EEOC has rejected comments suggesting that this definition be more narrowly defined. So we're seeing a real shift in how broad the protections are for people who may fall under this PCRMC definition.

We're seeing a new definition of "temporary." So what does that mean for employers? So if an employee is pregnant, the final rules presume that the employee could continue to perform those essential functions in the near future because they could perform the essential functions within the 40 weeks of their pregnancy.

Forty weeks still does not apply to the period of recovery of childbirth. But it really broadens the nature of temporary restrictions. And it means employers are going to have to review how they're treating pregnant employees who may need accommodations and reevaluating it in an entirely different way.

Now, family members are not entitled to accommodations. This obligation to provide accommodations to pregnant employees applies only to the qualifying individual. But essentially, if a pregnant employee is asking for an accommodation, it's easier to ask for one.

And there's additional language in the regulations expanding an employer's obligation to consider those obligations about potential accommodation. That may include working at home, nursing-- lactation while at work or nursing while at work. And some of these have been in place. There's also state laws that often provide greater protections than what's always been in place in federal law.

But the takeaway for employers is, you've got to change your default settings. If you have an accommodation request related to pregnancy and childbearing, it's not the ADA accommodation standard. And so this is where a lot of preventative counseling can come into play. You really have to evaluate the accommodation process in a whole new light.

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Text: Employer Takeaways. Review the final regulations and examples. Keep in mind that if another federal, state or local law provides greater protection or different requirements, those laws will also apply. The PWFA incorporates Title Seven's poster requirement. Review your policies and procedures. Carefully evaluate your forms. Some state and local laws limit when medical information can be requested to support a pregnancy-related request. Consider training your HR team, managers, first-line supervisors and others. Document! Jackson Lewis P.C. 

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We've listed some of the key takeaways. If I were an employer, what would I be doing? I would certainly be seeking legal advice if I have a pregnant employee. This is a new landscape. And it's not how we've always employed the accommodation process before. There are some requisite poster requirements. 

Take a look at your policies. That's a really important step. And of course, training your HR team, front-line supervisors, so they know what to say when an employee approaches them about a potentially needing an accommodation to deal with a pregnancy. 

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An interstitial slide displays a photo of people sitting in chairs along the wall of a conference room. Text: Discrimination and Harassment. 

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Another big topic is always-- and always is in the EPL landscape-- discrimination and harassment. 

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Text: EEOC Enforcement Guidance on Harassment in the Workplace: Key Points. Race-based harassment includes harassment based on traits or characteristics linked to a person's race such as their name, cultural dress and accent or speech pattern, as well as a person's physical characteristics including hair style or texture. Express recognition that sex-based harassment includes harassment on the basis of sexual orientation and gender identity, including the expression of one's gender identity. Harassment can include the intentional and repeated use of a name or pronoun inconsistent with an individual's gender identity or the denial of access to sex-segregated facilities such as bathrooms that are consistent with an individual's gender identity. Conduct based on stereotypes (whether positive, negative or neutral) is prohibited. Harassing conduct must be examined in the context of where it takes place or in the larger social context. Jackson Lewis P.C 

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But I want to talk a little bit about one of the key developments that we've seen so far this year, which is another agency implementing regulations that affect the workplace. 

Here we're going to talk a little bit about the EEOC Enforcement Guidance on Harassment. So the EEOC is the federal agency that's charged with investigating and implementing federal anti-discrimination statutes. And the EEOC came out with this enforcement guidance. And there's a lot of provisions. I've put some of these on these slides for you.

Some things I wanted to highlight for you in this updated guidance is, certainly we're seeing a focus of the EEOC having sex-based harassment to clarify that that includes conduct based on an individual's sexual orientation and gender identity, including how that identity is expressed. So that could be-- so, for example-- this is all according to the EEOC guidance. I want to be clear.

But that could include perhaps outing a person's sexual orientation or gender identity. Repeated or intentional misgendering is also specifically included. Deadnaming-- using a name used by a person prior to a gender transition. And denying a person access to bathrooms. So we're seeing the EEOC really focused on some of those gender identity issues in a more explicit fashion through this EEOC enforcement guidance that they expect employers to comply with.

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Text: EEOC Enforcement Guidance on Harassment in the Workplace: Key Points (continued). Employers are not required to accommodate religious expression that creates, or reasonably threatens to create, a hostile work environment. Harassment can occur with remote work as it can in the physical workplace. Virtual workplace, social media and similar technological advances outside the traditional workspace can still affect the terms and conditions of employment. The prohibition on retaliation extends to "retaliatory harassment," harassment suffered by the employee due to their protected activity. The threshold for establishing retaliatory harassment is different than that for establishing a hostile work environment as it extends to any conduct that might deter a reasonable person from engaging in protected activity. Jackson Lewis P.C. 

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A couple of additional key points are the new guidance really does highlight examples of the gender-based assumptions, family roles, leadership abilities. Even well-intentioned stereotypes, per the EEOC guidance, such as suggesting to an older employee that they should retire to enjoy their golden years, that constitutes prohibited conduct. 

And these are all things that people are not intentionally discriminating, but may, in the workplace, say something that the EEOC, in this guidance, is making it very clear that, in their opinion, is not appropriate. And they're going to be holding employers accountable.

Certainly, even facially neutral conduct can also be related to facially discriminatory conduct per the EEOC guidance. And so employers should really be taking a look at this enforcement guidance to make sure that they're familiar with these standards across the board. It's a really big formal document that's come out that we recommend everybody take a look at.

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Text: Employer Takeaways. Review and update harassment policies to align with new EEOC guidance. Train managers and employees on recognizing and addressing harassment. Establish clear procedures for reporting and investigating harassment claims. Jackson Lewis P.C. 

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Moving on to our next topic is taking a look at some significant enacted legislation. 

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In interstitial slide has a photo of court building columns. Text: Significant Enacted Legislation. The next slide reads: California SB 9 2 / A B 22 88: Amendments to Private Attorneys General Act (PAGA) - Effective July 1, 2024. Reforms penalty structure, streamlines litigation, adds ability for employers to cure violations. Colorado SB 23 58: Job Application Fairness Act (JAFA) - Effective July 1, 2024. Prohibits employers from inquiring about a prospective employee's age, date of birth, and dates of attendance at or date of graduation from an educational institution on an initial employment application. Illinois HB 11 22: Freelance Worker Protection Act - Effective July 1, 2024. Requires timely payment for services for freelance workers, written contracts, as well as to prohibit employer retaliation. 

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There are a lot more topics that we could include. But given I didn't want to take the whole topic today on some of these, I did want to highlight a few statutes. 

So in addition to all the federal laws that Chris outlined for us at the beginning as to the intersection that affects EPL policies, there are a lot of state laws that also come into play. I've highlighted a couple of new developments.

Certainly, if you're in California, PAGA is not a new name for you. Essentially, PAGA is the Private Attorneys General's Act. It is an act in California that allows aggrieved employees to bring a lawsuit not just on their own behalf, but on behalf of other employees and even on behalf of the state of California for aggrieved labor law claimed violations. It's a huge issue in the EPL space for our California clients.

And essentially, this new law came about as a result of several months of negotiations in the state of California for PAGA reform. It does a couple of key things that I do want to touch upon. One is it does provide caps on penalties on employers who quickly take action to address alleged labor law violations after they get a PAGA notice, which is part of the procedural process, and bringing a claim is the initial PAGA notice.

So employers who act quickly to address those are going to be benefiting from the caps imposed. Also, employers who proactively work and demonstrate that they've taken steps to comply with the labor law issues before they get a PAGA notice may be able to avail themselves of some of those monetary caps. It's pretty huge for PAGA actions.

Unfortunately, PAGA also increased the higher penalties on employers who act maliciously, fraudulently or oppressively in violating labor laws, meaning, so on one hand, it limited some of the penalties. But on the other hand, it also increased the penalties, as well.

Another key component of the PAGA reform that I think is really important to highlight in this EPL space is that there's going to be more penalty money going directly to the employees. So employees can bring this claim on behalf of the state of Connecticut. And under the former PAGA, they could recover 25%. Now there is a 35% benefit of recovery to the employee who brings it.

So what does that mean? It could mean there's more incentive to employees to come forward and bring PAGA actions on behalf of the state of Connecticut-- state of California or other employees. And so I think that's going to be a real impact to PAGA litigation, which, if you're in California, you know this word.

Another major law that came into effect I want to briefly highlight is Colorado Job Application Fairness Act. It's really on trend with what we're seeing in a lot of states, prohibiting employers asking about employee's age, dates of birth, date of attendance on graduation from educational institutions. This is kind of the low hanging fruit because it's not what we do when we're interviewing. We always ask, when did you graduate? So that's a trend we're seeing across the board.

Moving along, I want to touch upon a few other statutes that are important.

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Text: Illinois: Chicago Paid Leave and Paid Sick and Safe Leave Ordinance - Effective July 1, 2024. Employers are required to provide one hour of Paid Sick Leave for every 35 hours worked up to 40 hours per year and one hour of Paid Leave for every 35 hours worked up to 40 hours per year and may use any available Paid Leave and Paid Sick Leave. Originally to be effective December 31, 2023. Kentucky HB 3 20 - Effective July 14, 2024. Statute of limitations for various employment claims shortened from five years to three years. Jackson Lewis P.C. 

(SPEECH)
We're seeing, again, not new, but increasing paid leave, paid sick leave. It's been a trend for the last 10 years in the EPL space. We're going to continue to see more protections for paid sick leave, paid FMLA. And Illinois is no exception. 

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Text: Louisiana HB 118 - Effective August 1, 2024. Provides that it shall be considered an unlawful employment practice for an employer to require, as a condition of employment or continued employment, a prospective employee or employee to enter into a pre-dispute arbitration agreement that includes a provision requiring arbitration for any claim or accusation concerning sexual harassment in the workplace. Louisiana HB 161 - Effective August 1, 2024. Provides that no nondisclosure clause required by an employer and agreed to prior to a hostile work environment dispute or sexual harassment dispute will be judicially enforceable. Jackson Lewis P.C. 

(SPEECH)
Moving along to Louisiana, we've got a couple of more statutes in Louisiana. Again, really, this is around this trend around arbitration agreements that essentially avoid employees going to court and instead forcing claims to be brought in arbitration consistent with trends we're seeing when it concerns allegations of sexual harassment, a continuing saying, hey, you cannot force somebody to arbitrate. They have that right to go to court. 

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Text: Maryland HB 649 / SB 525 - Effective October 1, 2024. Alters the requirement that an employer disclose certain wage information to an applicant for employment. Requires an employer to disclose certain wage information in certain postings and to certain employees at certain times. New York A B 8806 / SB 8306 - Effective June 19, 2024. State budget bill includes provision mandating employers to provide 30 minutes of paid break time or existing paid break time or mealtime for time in excess of 30 minutes to express breast milk for the employee's nursing child, for up to three years following childbirth. Bill also provides for the expiration and repeal of certain provisions relating to sick leave and employee benefit requirements pursuant to a mandatory or precautionary order of quarantine or isolation due to COVID-19 on July 31, 2025. Jackson Lewis P.C. 

(SPEECH)
And then another final slide that I want to touch upon briefly are some developments in Maryland and New York. We've put all these details up on the slides. But Maryland, I want to highlight it because it alters a requirement that an employer disclose certain wage information. We're seeing a lot of legislation around, when can employees talk about their wages, when can employers prohibit employees talking about their wage information. 

And then the New York bill is, again, providing 30 minutes of paid break time. Again, we're seeing a lot of increased legislation in these areas. And so it's a mouthful. But I wanted to get some of these key states and developments into your line of sight. It's all about issue spotting. With that, I'm going to turn it back to Joan.

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Text: Washington SB 5778. Effective June 6, 2024. Prohibits an employer from retaliating or threatening retaliation against employees for refusing to attend or participate in meetings about the employer’s religious or political opinions or for refusing to listen to or view communications about those opinions. Prohibits employers from coercing employees into attending those meetings or participating in those communications. Washington HB 1762. Effective July 1, 2024. Requires employers to provide to each employee, upon hire, or within 30 days of the effective date, a written description of certain information relating to any quotas to which the employee is subject. Jackson Lewis P.C.

The slide presentation disappears, and the three speakers appear in video call tiles from their respective office rooms. 

(SPEECH)
JOAN WOODWARD: All right, Sarah, thank you so much, and Chris. It was really terrific presentations to set the stage for us. And there's a lot going on with this topic. So, Sarah, I want you to take us behind the scenes. When an employer comes to you with an issue in general, what's that first call like? And are there a lot of cases that something could have been foreseen and maybe prevented that you see coming towards you? 

SARAH SKUBAS: I am a big believer, Joan, in a 30-minute preventative call can go a long way to avoid litigation, or at least minimizing exposure in litigation. So when a client calls, they're nervous, right? It's their business. It is often huge. And to your point, labor is a huge component of operating a business.

Most employers, in my experience, want to do the right thing. They're not necessarily, though, aware of all these legal complexities. So my job in an initial client call is to really help issue spot, walk through what the issues, and help them flag, hey, did you think about this? Maybe we should be doing x, y and z.

And it's really complicated. And employers get overwhelmed. So that's usually my initial call. I really-- I would much rather spend 30 minutes on a call with a client than two years of litigating with them.

JOAN WOODWARD: Sure, certainly. And how about the mom-and-pop shops, some very small businesses that don't have a whole legal department at their side? So just understanding what these risks are out there with an early call. OK, thank you for that. Chris, let's talk about how much it can actually cost an organization that gets hit with an employment practices suit in your looking through all the claim data that we see-- thousands of them, right, each year. What's the average cost of this?

CHRIS WILLIAMS: So to Sarah's point, there's a non-monetary cost, right? For the audience, maybe think about a stressful, anxiety-producing situation you've been in. The marshal comes and knocks on your door, and you're served with papers, suit papers that have very intensely personal allegations accusing you of discrimination, sexual harassment, whatever the case may be.

And then you start the discovery process, where you have to turn over all your emails, your text messages. That's going to be anxiety inducing. Then you go through the deposition process, where you get grilled by a lawyer all day long about all the decisions you made. So I would say that's a difficult process, just the non-monetary component and the challenge that causes.

From a pure dollar standpoint, when we looked at Westlaw, the employment verdicts in 2022, the average verdict was 1.4 million compared to a median of $95,000. And that's one component. But you also have the defense costs. If you're going to try a case to conclusion, it's probably going to cost you at least $150,000.

And then if you lose that case, you're generally obligated to pay the plaintiff's fees, as well. And just, let me give you an example how that can really drive up the exposure. There was a California case-- and there's a ton of them out there-- but the jury awarded $27,000 in a discrimination and retaliation case. And the plaintiff’s attorney sought a fee petition of $1.9 million. And that was ultimately knocked down to $700,000. But that's still 25 times what the amount that the claimant was getting. So that's some real money in the lawyer's household.

I would say that creates problems for employers in two ways. One, it provides an incentive for the plaintiffs’ bar to bring these claims because there's a financial incentive. And two, it provides an incentive to litigate those cases longer because the longer they go on, the more their fees are, potentially, and the higher the reward is. To say, overall, the plaintiffs win the cases that get tried. And most of them settle. But they generally win about half of them that do go to a conclusion.

JOAN WOODWARD: Wow, OK. That's a lot. That's a lot in many, many ways. Let's talk about potential new exposures, current trends. And I'm going to go back to Sarah. The laws obviously are rapidly changing around discrimination in the workforce. What do employers need to be aware of around discrimination issues?

SARAH SKUBAS: Sure. I will say it is a really active time, Joan, in the workplace legal landscape. We are seeing a real emphasis on pay transparency and pay equity. It's a huge issue, right? Are you paying people of different genders different pay ranges? And if so, is there a legitimate reason for it? Or is it discriminatory?

We're seeing a lot of disclosure requirements on employers to disclose the pay ranges in their job postings. And it's creating a lot of buzz. We are also seeing new classes of protected class. Obviously, the EEOC guidance I touched upon focused a lot on gender identity, which isn't necessarily new. But certainly, at a federal level, that focus is renewed.

But even things like people's weight or perceived disability. You may not be disabled, but if you are perceived to have a disability by your employer, we're seeing a lot of expansion in those types of protected classes.

JOAN WOODWARD: OK, thank you for that. And, Chris, I want to go back to you. So what are some examples maybe of newer exposures that you're seeing for employers?

CHRIS WILLIAMS: So everybody's talking about AI at the moment, right, Joan?

JOAN WOODWARD: Yeah.

CHRIS WILLIAMS: And let me give you an example. The EEOC brought a claim on behalf of an applicant who applied for a position, put in his true age, which was over 60, didn't get a call back because it went through some AI software. And when he lowered his age to below 60, all of a sudden, his application got accepted. And he got called in. So the EEOC brought a claim. They ultimately settled that case for $365,000.

New York has implemented a law basically saying if you're going to use AI software in terms of looking through applications, you have to tell employees about that. You have to disclose those results. I'd say we're closely monitoring it. But it's probably a little early to see what really the outcome is going to be of using AI overall in that context. Probably two other things--

JOAN WOODWARD: Wait, Chris, in that example, though, so the guy applied as over 60. And then he applied as under 60. So he never actually worked at the company.

CHRIS WILLIAMS: No.

JOAN WOODWARD: He just submitted two applications. And he was awarded $365,000?

CHRIS WILLIAMS: Yeah, the EEOC, yeah, resolved it for $365,000.

JOAN WOODWARD: And so our employers disclosing that AI is being used in sorting through applications, is that something that-- you said New York has a new law. But what about other states?

CHRIS WILLIAMS: I think they're considering it, Joan. I think it's-- legislatures sometimes move a little slowly in terms of reacting to these societal trends. So they're working their way through that. And I wouldn't be surprised if you saw more similar laws like that. But again, that's something employers need to be conscientious of because it potentially creates exposure for them in the long term.

JOAN WOODWARD: What about remote and hybrid work scrambling things up for employment law, Chris? What are you seeing there?

CHRIS WILLIAMS: So that creates a real challenge for employers. As they brought people back into the office and they've tried to do that overall, some people may be granted the ability to work from a hybrid, and some people may not. And that could have potentially discriminatory impacts on the group that's allowed to work remotely and those that aren't.

I would say, other times, you see claims by people that are asking for accommodations to work from home. For example, maybe they have some disability like anxiety or depression. And it's very difficult for those folks to come into the office. And that's a hard issue for employers to manage because you are obligated to work with the employee to consider what's a reasonable accommodation. But then everybody else that's coming into the office may perceive that as unfair.

One of the things I did this morning, I think, Joan, when I was looking at the data, the claims have definitely gone up since people have returned to the office. And I think that's not a surprise. There's more one-on-one interaction, more work dinners, more conferences where alcohol is served. Sometimes inappropriate conduct happens.

But I also think employers are maybe monitoring the employees at work a little more closely. One of the things I did this morning, I was looking at Amazon. I don't know if you've heard of a mouse jiggler. But you can buy a device that moves your mouse around so it looks like you're actually working if you have Teams or a software like that on your computer.

And there were 18 pages of those mouse jigglers that you can buy on Amazon. And over, I think, 30,000 reviews on the first half page. So a lot of people are using those. That was my conclusion. So I think if people are coming to the office more frequently, probably getting scrutinized a little closer.

You may also remember, at the start of the pandemic, a lot of IT workers-- not a lot-- but there were some that were working two or three jobs at a time. So I think there's more scrutiny on the employees that are coming into the office generally.

JOAN WOODWARD: OK, well, thank you for that. That's interesting. I don't have a mouse jiggler.

[LAUGHTER]

So I guess things are created for all sorts of purposes. Sarah, let's talk about maybe a very sensitive subject. But I do want to bring it up because I think it's important, especially in this environment. Politics has entered the mix of what is permissible into the workplace. And so what are you seeing? What are you hearing? What advice do you have for employers about people talking about their political views in the workplace?

SARAH SKUBAS: You are 100% right. It is a very common question this season that we are seeing. I grew up being told there are a couple things you don't talk about at the dinner table-- religion and politics. But we know that when employees watch the debate or come into the office talking about the water cooler or the weekends, it comes up. And as an employer, there are a lot of things to be aware of.

Employers in many states may have state statutes that limit employers’ ability to regulate an employee's talking about politics in the workplace. And yet you're trying to have them focus back on the work. You also see, when people are talking about politics, it may start to implicate other protected classes, like religion or personal beliefs about medical issues that they're feeling or dealing with. And so it is very complicated.

My advice to employers is do not issue any blanket policies prohibiting this type of speech. Rather, seek out legal advice and counsel. It's a good time to take a look at your policies. It's a good time to train your managers. It's the frontline managers who hear these discussions. And if they don't know how to deal with this, then there's a lot of exposure for employers.

JOAN WOODWARD: Yeah, OK. Well, thank you for that. As many people know-- I just want to put a little commercial in for our Citizen Travelers program here at Travelers. We encourage all of our employees to be civic-minded and civically engaged in a nonpartisan way. And so that Citizen Travelers programming is sometimes on our webinar series. I encourage everyone to listen in. They're really well done.

OK, back to the show. So, Chris, you've spoken about rogue employees. So a rogue employee is creating liability for their employers. What do you mean by that? Give us an example.

CHRIS WILLIAMS: This might be the PG-13 part of the presentation. So behavior that happens in the workplace. So I'll give you a couple of examples. Somebody is rolled up in bubble wrap, driven on a forklift around, and then they have garbage dumped on them. I'd say somebody's charged-- manager charges into the bathroom stall to approach the employee. Employee is waterboarded as part of a sales training technique and told to try to make a sale as hard as they are trying to breathe in that situation.

Had a claim where somebody was in a wheelchair. They poured lighter fluid around it and played Johnny Cash's "Ring of Fire." So those are employees, when they got hired, I'm sure the employer never in a million years thought that was going to be the result of those situations. And they end up in litigation.

Those employers have policies about respectful treatment in the workplace. But it just takes one person acting inappropriately. And that can create a world of headaches and litigation exposure and dollars exposure for the employers.

And for us as an underwriting company, it's difficult to identify who those employees are that are going to be the problem long term. And you can do everything right from an employer's perspective. And you can have an employee like that that creates a real challenge for you.

JOAN WOODWARD: OK, and sorry to hear about some of those. Those are really awful things to deal with. Still with you, Chris. I have a question about people returning to the office. Obviously, a lot of people, as you say, going to conferences. We're having lunches and getting back to, quote, unquote, the "new normal."

It's also created a number of workplace relationships that are blooming. And we've seen a lot of this. I've read recently that there's a lot of relationships. And how do employers-- how does this create an issue for employers? And how do you recommend people handling it?

CHRIS WILLIAMS: Yeah, so there's some interesting stats about this. I was stunned by it, that 49% of workers had a crush on a coworker; 21% of workers went on a date with a coworker; 10% of people admitted to having feelings for their boss. I was a little surprised by all of those, really.

But there's really no law that prohibits workplace relationships. But it does create potential exposure three ways, Joan, for employers. You could have one employee pursuing a romantic relationship with another employee. It could be outside of work, could be inside of work. It could include a couple text messages. But we've seen those claims where there's multiple text messages. And one employee may perceive it as the other party's interested. But they may really not be interested. So that can give rise to sexual harassment claims.

More extreme cases. We've seen claims where people-- manager requires a hug every time somebody comes into the office. Explicit pictures are shared over iPhones and devices. Alcohol tends to exacerbate these situations-- probably not a big surprise.

The second situation, I think, where it creates exposure is if there's a relationship in the workplace and the parties break up. And one party is not satisfied with that breakup. And they continue to pursue the relationship. That can create exposure for the employer.

And the third one-- and this is really the most troublesome, and employers should have policies about this-- prohibiting relationships between managers and subordinates because there's such a power imbalance. And the job assignments that might be given to that individual that's the subordinate. We've seen claims where managers might require the subordinate to share a hotel room on a trip. We've seen trips where they dictate what the employee wears.

And again, we're in 2024. And you still see these claims? I've been working on EPL since '96. Now I feel old, Joan. And I thought these claims would just go away. And I've just been so wrong about that. And following Harvey Weinstein, we continue to see them. And I just don't think they're ever completely going to go away.

JOAN WOODWARD: All right, thank you for that. It's unfortunate. Sarah, so all the stuff we just talked about for the last half hour, if I'm a smaller employer, I may not think that I need to worry about all these things. Is that wrong? Is that right? I'm worried about the small businesses out there.

SARAH SKUBAS: I am also worried, Joan. Unfortunately, it's wrong. There are some laws that apply to only employers who maybe have 50 or 25 employees. But there are many laws that apply if you have one. Even if you're a single owner, technically it would apply to you.

And so there's a lot of times that I'm working with a smaller client and they say, I'm small. How do they expect me to comply with all this? Unfortunately, that is not a defense. And so every size employer. I think there's a way to block and tackle some of the issues for small employers. But they certainly could do a lot by getting some help on their handbooks or issue spotting some of the big areas. Your harassment policies, your training, your accommodation issues are really big ones.

JOAN WOODWARD: OK, thank you. So let's go back to the Chevron decision because I want to talk about how that's impacted the claims, the employment claims that you're seeing. So, Sarah, you first. Let's talk about the Chevron decision and what we should expect going forward.

SARAH SKUBAS: So I'm a total wonky legal nerd. But I know most people on this presentation are not. I think it's going to be really interesting. So there are a ton of legal challenges to a lot of the rules and regulations I talked about earlier-- the Pregnancy Workers Fairness Act, the Department of Labor rule that is increasing the minimum salary requirement.

The FLSA, the federal law around wage and hour issues, doesn't set a minimum salary. The Department of Labor has imposed that. So we're seeing a lot more activity in litigation. What does that mean for single employers or potential claims?

I think every time you get a claim in where it alleges some violation of one of these rule-making that we're talking about, you need to rethink potential legal strategies and challenging the litigation in a different way. It's no longer status quo that, hey, if an agency said it, it must be true. And so I think being really creative in how you approach claims is going to be an important part of the issue in light of Chevron.

JOAN WOODWARD: Thank you for that. And how can employers keep up with all these changes? What do you suggest? Actually, Chris, let's go to you on that. How can employers keep up with that?

CHRIS WILLIAMS: Yeah, so I think law firms and Travelers ourselves, we have resources that we make available to employers that provide legal updates about things that are happening and things they should be aware of. We provide training to employers that they can provide to their employees online. There's news sources that are dedicated to employment compliance issues.

I will say, for employers, I think it's important to have a dedicated resource or personnel that's responsible for keeping track of all this, all these issues. And the employer has an obligation to really do their due diligence. Or they can end up in an employment claim that they didn't foresee.

JOAN WOODWARD: OK. So, Sarah, let's talk about steps that employers can take to mitigate their risk. So what do you tell your clients on strategies that can reduce workplace risk?

SARAH SKUBAS: So I think there-- one, preventative advice and counsel before you are taking an employment action against an employee. So if you're doing a reduction in force or a termination and there's any sort of protected class or accommodation request, reach out and get legal guidance. I really do believe it can really help minimize.

Two, keeping abreast of the evolving issues. Maybe in addition to what Chris said, you're doing an annual review of your policies. That's an easy flag to say, where am I deficient? Because it's hard to keep up with all the laws.

Training is super important-- training of your managers. Who's the employer? It's us. It's the managers. It's the people. And I don't want to simplify what I do by any means, but to quote Elle Woods in Legally Blonde, "Happy people don't shoot their husbands." Happy employees don't sue their employers. It's about employee engagement and creating a positive culture and workplace. And I think if you focus on that, the rest will come together. 

JOAN WOODWARD: I really like that, I do. I think engagement-- highly engaged employees is what you're going for. And we believe that here, obviously, at Travelers, as well. So, Chris, let's go to you. What can employers do to mitigate their exposure by their employees? 

(DESCRIPTION)
Slide text: What Can Employers Do To Mitigate Their Risk to Employee Claims? Understand and Comply with Employment Law. Many insurance carriers provide risk management resources including sample employee handbooks, policies, updates on employment law, and training on topics such as sexual harassment, employment termination, and discrimination. Law Firm Resources. Develop and Comply with Employment Policies and Procedures. Provide Training to Employees. Establish a Positive Working Culture. Document Employment Decisions. Consult with Employment Counsel Prior to Terminating an Employee. Employment Practices Liability Policy. The slide has the red Travelers umbrella logo. 

(SPEECH)
CHRIS WILLIAMS: Well, I'd be remiss if I didn't mention an EPL policy, that that is a key cornerstone of the protection, because I think you can do everything right as an employer overall, and you can still face an employment claim. We talked about those rogue employees overall.

And our claim department, they are phenomenal at helping resolve claims. I don't know if you know this, Joan, but they send out a survey on all their closed claims. Get an average score of 9 out of 10, which is, I think, is really phenomenal, in terms of how they resolve the claims and work with the client and help manage some of that anxiety and stress that's associated with them.

For me, really, the big one is the workplace culture. And that, I think, goes along with the engagement and having senior management really set the tone for what's acceptable in the workplace and what's not. And if something's witnessed that's not OK, then they need to take action immediately. Employers get into trouble, I think, when they don't take action and things are allowed to continue.

JOAN WOODWARD: So what are some additional coverages, then, available under EPL, Chris?

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The slide disappears, replaced by the three speakers on video call again. 

(SPEECH)
CHRIS WILLIAMS: So there's third-party coverage. So we talked about claims by employment applicants, former employees, employees. But the third party would provide coverage for discrimination or sexual harassment by nonemployees. So you might see some claims by somebody with a disability that can't access a retail store. And they'd bring a claim under the ADA. 

We've seen some claims where people put cameras in doctors' changing rooms or retail changing rooms. And those individuals, the customers, bring sexual harassment claims. Also, the latest trend is website technology. If you have a website that's not accessible to those with a visual impairment, for example-- there's technology that can read that text what the picture is of-- they've seen ADA claims, as well. So that's one component.

Wage and hour defense, there's reimbursement for defense costs if somebody brings a wage and hour claim for overtime or minimum wages. Workplace violence reimbursement coverage reimburses costs in the event of a workplace violence event, things like PR costs, security guard, counseling services for the employees.

And so the last one is immigration coverage. You may recall when you started at Travelers, probably everybody here had to sign an I-9 form just authorizing that they're legal to work in the U.S. The federal government can come in and audit the employer. And that coverage would help with that audit and respond to that.

JOAN WOODWARD: OK, so let's talk, before we get to audience questions here, why should employers of any size really have an EPL insurance policy? Why?

CHRIS WILLIAMS: I'd say the state statutes, they vary by employer size about what employers are subject to. Although Title VII applies to employers with 15 employees, in Connecticut, it applies to three employees. So you can face claims by your employees, applicants and former employees and third parties.

And state statutes provide different protections for-- we talked about, here, the political affiliation unemployment status. Prince George's County in Maryland, you're a protected class based on your personal appearance. So I think it's hard for employers just to keep up with all these trends. And the backstop for that is really an EPL policy.

JOAN WOODWARD: So we're going to take audience questions. If you haven't, put it in the Q&A. And then I want to make sure we get to as many as we can. First one is going to Sarah. This is from Stephanie Quintana of Alera Group in California. "How can employment liability and workers comp be linear but not mixed?" This is a really, really interesting question. And there's, I'm sure, a fine line between workers comp and employment liability. So, Sarah, what is your answer on this one?

SARAH SKUBAS: That's a great question. We see it all the time. And so where we see workers comp is it is certainly separate from the EPL issues. But there's a lot of intersection. So if somebody has a workers comp claim, they may also have potential issues around ADA or state accommodation obligations. If they have a restriction and they're returned to work on light duty, employers aren't always thinking about the ADA obligations they have.

If somebody has a workers comp injury, they're not always thinking about the FMLA obligations that they may have that go along with it. If somebody has a workers comp injury and then they need to be terminated for legitimate, non-related reason, they're not thinking about the potential retaliation claims that we see that come along with workers comp.

There are some states that prohibit employers from terminating while someone has an active workers comp claim. And so there are a host of issues that I think sometimes they get laser focused on just the workers comp, which is often very formulaic. And they kind of forget about the intersection of all those really important employment obligations that employers have.

JOAN WOODWARD: OK, thank you for that. That's a really interesting topic, I think. All right, Chris, on to you. Sharon Llewellyn of Marsh McLennan in New Jersey asks us, "How does EPLI address workplace violence?" Very interesting question. Workplace violence, how does that address it?

CHRIS WILLIAMS: Yeah, so most carriers, I think, do it via endorsement. And they reimburse the insured in the event there's a workplace violence event. And that would be something like a shooting. Depending on the carrier, they may cover robbery as well in those situations. But it really just reimburses the insured for those extra costs they have.

They may have some PR costs that they need to address the issue. Employers are probably fairly stressed out by the event. So it'll reimburse to bring a counseling service in to work with those employees on that issue. If there's additional security guard required because the property is now accessible to the public at large, it'll pay to reimburse that all up to a certain time frame and subject to a separate limit.

JOAN WOODWARD: OK, thank you for that. Chris, again. Colleen Huffman of Lockton in Washington asked, "Who does not need to purchase EPL? I feel like I have quite a few middle market accounts who don't."

CHRIS WILLIAMS: Colleen, I would love to come to Washington and talk to your clients overall on that issue. And I'm going to maybe flip the question a little bit in terms of employers that don't need it. I'd say, if you are 100% confident that you are in compliance with the law, if you are 100% comfortable that all your employees are acting appropriately in the workplace and you have 100% faith in the jury system, those are really the only times I think you might not want to consider buying EPL.

But the cost of these claims are-- we talked about the average verdict in 2022. And it can be astronomical. And in some cases, they can put an employer out of business. So I would suggest to you, Joan, everybody really needs it.

JOAN WOODWARD: OK. It sounds it. Chris, back to you for another one. Jennifer Hobbs-Swindell, The Insurance Center of North Carolina, wants to know, "What is the most common mistake you see insurance professionals make in reference to this type of coverage?"

CHRIS WILLIAMS: Not tendering claims in a timely manner. Our claim department is really great at resolving claims. But if insureds sometimes forget they have the coverage or they think, I'm going to resolve this claim myself because I think I can do that, sometimes those things snowball.

Like you mentioned, Joan, we handle thousands of claims a year. We're good at finding exit ramps and trying to figure out a solution to resolve those claims. And sometimes, by holding on to those claims for too long, insureds miss those opportunities to get the exit ramp and get out of those situations.

JOAN WOODWARD: OK, thank you for that. And maybe to Sarah now, this is from Shannon Ginsburg in California. Asked, "What is the most common claim in EPL that you're seeing?"

SARAH SKUBAS: Great question, Shannon. For a long time-- and I don't have the EEOC statistics in front of me. And Chris probably knows better than I. It was always retaliation. That was the real big trend because you can do the right thing, but if an employee makes a good-faith complaint and then they're terminated, even if their complaint wasn't substantiated, we see a lot of increase in retaliation. That tends to still be a big claim that we're seeing today.

JOAN WOODWARD: OK. Another one coming in-- thank you-- from Mark Soycher. And if I mispronounce anyone's name, I apologize. "Does EPL also cover negligent hiring or negligent employment claims?"

CHRIS WILLIAMS: Generally, the negligent hiring would be covered. But it would depend on the specific form and whose policy you're looking at. So I can't speak for the entire market overall.

JOAN WOODWARD: OK. Let's go with this one-- Joey Zglinicki. "An employee gets injured, and the workers compensation is paying the employee. Employee is able to do light-duty work. However, job has no light-duty work. And insureds let the employee go. Employee is still drawing workers comp and sues employer. Is this employer breaking the EPL rules?"

SARAH SKUBAS: So I can jump in just generally from the employment law landscape. So there are going to be state laws that are going to dictate some of this. But that's what I'm talking about, the ADA accommodation process coming into play.

Some states have statutes specific as to light-duty obligations under a workers comp forum. But even if they don't, we need to be looking at it like we would any other employee who has a restriction because of a medical condition to see if we need to provide accommodations. And then making sure you're documenting. I wouldn't be a lawyer if I didn't tell you to document things. But making sure we're documenting the legitimate reason for separation.

I say this when it comes to any medical condition, whether workers comp related or not. The process is as important as the end result. And so it's really important for those types of employers to take a look at all those different issues before they separate employment. So the answer is you're not necessarily violating the law, but there's a lot more that needs to go into the analysis.

JOAN WOODWARD: OK, thank you. And then, Sarah, back to you on this one because you spoke about this earlier. A couple of questions coming in. When you say the employee has to have access to the restroom that they want or identify with, what about if that affects or bothers other employees? And how does that really work?

SARAH SKUBAS: Such a great question. Again, that-- when I was talking about that, I want to be really clear. That's according to the EEOC guidance that has come out. I think we're going to-- I know we already are seeing that guidance being litigated. And the litigation is specifically around the transgender components of that guidance. So you're going to want to keep an eye out.

There were, I believe, 18 states-- Republican states-- who filed a lawsuit challenging some of those components. And so we're going to have to watch that litigation play out. But generally speaking, I can say when an employee's rights are affected by another employee's protected rights, there are no bright-line rules. It's really complicated.

JOAN WOODWARD: OK, thank you for that. Listen, the hour has flown by. Sarah and Chris, I want to thank you so much for sharing your knowledge, your expertise. These are not easy subjects to talk about. But as you know, we deal with them every day in our claim process. So very complex. Really, you broke it down for us wonderfully.

So thank you for joining us. And there's a link in our survey now about today's program. Can you please, everyone who could, fill that out for us? We'd love to know what you thought and what sessions you'd like to see us host here again on a Wednesday webinar.

(DESCRIPTION)
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(SPEECH)
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(DESCRIPTION)
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(SPEECH)
It's called the Travelers Institute Risk and Resilience podcast. It's now available on Apple and Spotify. So subscribe today. There's a link there in the chat. Again, Travelers Risk and Resilience. 

We also have an exciting lineup of both live events and webinars. 

(DESCRIPTION)
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(SPEECH)
Next Wednesday, the 25th of September, we'll be talking about recruiting and retaining emerging talent, which I know is an ongoing challenge for many of our agents and brokers out there. 

Then, on October 2, we're going to kick off Cybersecurity Awareness Month by focusing on cybersecurity and what organizations can do now with the evolving cyberthreats that are out there. And then, on October 9, I'm going to be joined by Charles Symington of the Big "I" and my colleague Sean Ramalho, EVP of Distribution, for a deep dive into the latest independent insurance agents and distribution channels.

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(SPEECH)
And then last but not least, we're on the road this fall with a Cybersecurity Education Tour. We're now in our ninth year of doing these events in person across government experts and industry leaders. We're going to be in Arlington, Virginia, next Tuesday. So if you're in Arlington, Virginia, September 24, come join us for lunch. These are all free and open to the public. And we're going to have a wonderful discussion. Registration is open. We're dropping that in the link, as well. 

So I really appreciate all of you joining us this fall. We've had nearly 7,000 people register for today's program, which just shows that there's great interest in understanding these deep dives in insurance knowledge. And we're here to help you weed through it, sift through it to help your clients and customers be better off. So enjoy your afternoon, everyone. Thanks for joining in. And we'll see you next week.

(DESCRIPTION)
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[PIANO MELODY]