Bill Smith, Esq. VP of Regional Offices 2017 CopperPoint Safety Works Expo

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1 EPLI: Protecting More Than Workplace Safety Bill Smith, Esq. VP of Regional Offices 2017 CopperPoint Safety Works Expo

2 What is EPLI? 2

3 Employment Practices Liability Insurance A type of coverage available to mitigate the risk of liability in claims by employees (current, former and prospective) Covers legal costs of dispute as well as final settlement or verdict 3

4 What Types of Claims are Covered by EPLI and What is the Risk? 4

5 Insurers offer different policy options, but common claims covered are: Discrimination (based on protected status) Harassment (including sexual harassment) Wrongful Termination Infliction of Emotional Distress Breach of Contract Violation of the FMLA or other leave laws 5

6 Common exclusions are: Wage and hour (FLSA) ERISA WARN Act Unemployment benefits COBRA NLRA Workers Compensation 6

7 Be sure that you understand coverage and exclusions prior to purchasing a policy! 7

8 EEOC: Remedies for Employment Discrimination Goal of remedies: put the victim in the same position that he or she would have been in had the discrimination never occurred Compensatory & Punitive Damages EEOC: Limits Depends on Size of Employer employees: $50, employees: $100, employees: $200,000 More than 500 employees: $300,000 8

9 FMLA: Remedies Back Pay and Front Pay Liquidated Damages (equal to back pay plus front pay) if willful 9

10 Jury of Your Peers? 88% Poor work? Terminate! 74% Supervisor better warn first! 67% Deserves termination! 91% No documentation? Negligent!

11 How Can I Lower EPLI Risk? 11

12 HR Best Practices! 12

13 Law School in 3 Easy Steps Is there a law? Does it apply? What are the rules?

14 Unfair or bizarre behavior could lead to new case law or New interpretation

15 Consider the Reality Factor How will your decision impact employee relations?

16 INTERVIEWING AND SELECTION

17 Interviews Job-related questions Consistent evaluation of candidates No verbal promises! Appropriate response to applicant comments.

18 Can you perform the essential job functions as I have outlined? Is there a reason you are disclosing this information?

19 I don t need to know any medical information, let s talk about your experience. Let s discuss the job requirements.

20 Discrimination DISCRIMINATION

21 Protected Status Race, color, national origin, sex, religion Title VII (1964, 1991) Age 40 and over Age Discrimination in Employment Act (1967) Qualified individual with a disability Americans with Disabilities Act (1990, 2008)

22 Protected Status Veterans, military duty, reservists Uniform Services Employment & Reemployment Act (1994) Family medical history, DNA, RNA, Genetic Information Nondiscrimination Act (2008)

23 Arizona Adds Medical marijuana use Arizona Medical Marijuana Act Check Your Local Ordinance: Marital/Family Status Ancestry Sexual Orientation Gender Identity Phoenix, Tucson, Tempe and Flagstaff Local Ordinances

24 Types of Discrimination Different Treatment Adverse Impact Mixed Motive Failure to Accommodate Retaliation Harassment

25 Different Treatment Member(s) of protected group treated worse than others Treatment affects terms or conditions of employment Defense if non-discriminatory business reason justifies the treatment

26 Risky for Supervisor to Treat similarly situated individual(s) worse than others Refer to someone by protected status Stereotype Not follow own policies

27 Adverse Impact Neutral policies and practices impact one group worse than others Problems: Requiring certain qualifications Test criteria

28 Mixed Motives Poor attendance Shoddy work AND protected status Violating company rules

29 Mixed Motives Poor attendance Shoddy work AND protected status Violating company rules

30 Failure to Accommodate Not providing accommodations at work that: Allow religious practice or Enable qualified, disabled individual to perform essential job functions

31 Compliance To Do List 31

32 Ways to Reduce Risk Create a culture of compliance ensure that executive leadership knows and understands the law Train managers Document, document, document

33 Documentation Discoverable s Sticky Notes Computer Log Manager Notes Formal Warnings Evaluations

34 Bill Smith, Esq. VP of Regional Offices (602)