Tag: epli

New law ends forced arbitration of sexual harassment claims

By Anita Byer, Setnor Byer Insurance & Risk

A new federal law prohibits employers from forcing employees to arbitrate sexual harassment claims. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act invalidates pre-dispute agreements that force employees to resolve claims of sexual harassment through arbitration instead of litigation. Approximately 60 million American workers are bound by forced arbitration clauses in their employment agreements. However, as of March 3, 2022, those with claims of sexual harassment can have their day in court.

The Act, which passed with broad bipartisan support, amends the Federal Arbitration Act to make pre-dispute arbitration agreements for sexual harassment disputes invalid and unenforceable. A pre-dispute arbitration agreement is any agreement to arbitrate a dispute that had not yet arisen at the time the agreement was made. This definition is broad enough to include most employment agreements that require arbitration. A sexual harassment dispute is a dispute relating to conduct that is alleged to constitute sexual harassment under applicable federal, tribal or state law.

The Act also invalidates pre-dispute joint-action waivers. These are agreements that prohibit one party (the employee) from participating in a joint, class or collective action involving a dispute that has not yet arisen at the time the agreement is made. Employees are no longer bound by these pre-dispute joint-action waivers, regardless of whether the waiver is part of the pre-dispute arbitration agreement.

Disagreements regarding the Act’s applicability to a specific claim are resolved by a court, not an arbitrator. As a result, many employers will ultimately end up where they least wanted to be. However, it’s important to note that the Act applies to pre-dispute arbitration agreements. It does not prohibit the parties from mutually agreeing to arbitration after a claim has arisen. The Act also applies at the election of the person making the claim, so employees are free to proceed pursuant to their employer’s pre-dispute arbitration agreement if they wish.

Employers must understand that the Act applies to disputes or claims that arise or accrue on or after March 3, 2022. It applies to all pre-dispute arbitration agreements, even those that predate the new law. Given the popularity of pre-dispute arbitration agreements, many employers will need to review their employment contracts and consult with counsel to determine how the new law will affect them going forward. Employers also need employment practices liability insurance (EPLI) to protect against the uncertainty that accompanies the enactment of any new law.

Please contact us to learn more about protecting your business with Employment Practices Liability Insurance.

EEOC Enforcement Activity Increasing, Approaching Pre-Pandemic Levels

By Anita Byer, Setnor Byer Insurance & Risk

The Equal Employment Opportunity Commission’s enforcement capabilities are returning to pre-pandemic levels. Despite COVID-19, the EEOC remains committed to preventing and remedying unlawful employment discrimination and advancing equal opportunities in the workplace. The most recent Agency Financial Report highlights the EEOC’s enforcement accomplishments in 2021 and identifies its strategic enforcement objectives going forward. This crucial information can help employers avoid the EEOC in 2022.

During fiscal year 2021 (October 1st – September 30th), the EEOC handled approximately 383,500 calls and 52,000 emails from the public, which is nearly 40% more than in 2020. The EEOC also:

Secured more than $484 million for victims of discrimination, including:

  • $350.7 million for 11,067 victims of employment discrimination through mediation, conciliation and settlements;
  • $34 million for 1,920 individuals as a direct result of litigation resolutions; and
  • more than $100 million for 2,169 federal employees and applicants.

Filed 116 lawsuits, including:

  • 74 suits on behalf of individuals;
  • 29 non-systemic suits with multiple victims; and
  • 13 systemic suits involving multiple victims or discriminatory policies.

Prioritized its mediation program by conducting:

  • 6,644 successful mediations resulting in $176.6 million in benefits to charging parties; and
  • 639 federal sector mediations resulting in nearly $8.4 million for federal employees and applicants.

The EEOC also resolved 138 lawsuits and achieved favorable results in approximately 96% of all federal district court resolutions. In addition, the EEOC successfully resolved 41.1% of conciliations. A charge with a reasonable cause determination that is resolved by the EEOC through voluntary efforts is considered a successful conciliation.

In 2022, the EEOC will continue its efforts to prevent and remedy employment discrimination by:

  • rebuilding and strengthening its enforcement capacity;
  • addressing systemic discrimination on all bases;
  • advancing racial justice;
  • enforcing pay equity; and
  • addressing the civil rights impact of COVID-19.

Employers can use the EEOC’s Agency Financial Report like a radar detector. It’s much easier to avoid costly violations when you know where the EEOC is directing its attention and how it’s allocating resources. However, given today’s rapidly changing environment, employers also need employment practices liability insurance (EPLI) because it’s impossible to know what tomorrow may bring.

Please contact us to learn more about protecting your business with Employment Practices Liability Insurance.

EEOC Updates COVID Guidance to Address Pandemic-Related Workplace Retaliation

By Anita Byer, Setnor Byer Insurance & Risk

The Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance to address retaliation in pandemic-related employment situations. This was prompted in part by the fact that retaliation has been the most frequently alleged form of discrimination for many years. According to EEOC Chair Charlotte Burrows, the update “provides additional clarity on how our laws balance workers’ rights to speak up without fear of retaliation against employers’ responsibilities to create a healthy and safe work environment.”

The anti-retaliation updates apply to the exercise of rights under the federal equal employment opportunity (EEO) laws. Though the laws remain the same, the updated technical assistance communicates the EEOC’s position when it comes to COVID-related retaliation claims. The EEOC notes that retaliation protections apply to current employees, whether they are full-time, part-time, probationary, seasonal or temporary. They also apply to job applicants and to former employees (such as when an employer provides a job reference).

Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity, such as reporting or resisting EEO violations, filing a charge of discrimination or requesting an accommodation. Depending on the facts, unlawful retaliation can include:

  • denial of promotion or job benefits;
  • non-hire;
  • suspension or discharge;
  • work-related threats or warnings;
  • negative or lowered evaluations; or
  • transfers to less desirable work or work locations.

Retaliation could also include an action that has no tangible effect on employment, or even an action that takes place only outside of work, if it might deter a reasonable person from exercising EEO rights. However, depending on the specific situation, retaliation likely would not include a petty slight, minor annoyance, or a trivial punishment.

The EEOC notes that engaging in protected EEO activity does not prevent discipline of an employee for legitimate reasons.  Employers are permitted to act based on non-retaliatory and non-discriminatory reasons that would otherwise result in discipline.  This would include non-retaliatory, non-discriminatory action to enforce COVID-19 health and safety protocols, even if such actions follow EEO activity, like an accommodation request.

To reduce the likelihood of claims, employers should proceed cautiously when presented with any COVID-19-related matter. This may include seeking counsel from a licensed professional. Employers need Employment Practices Liability Insurance to cover the high cost of defending actual and alleged claims of unlawful conduct. Why? The EEOC is watching and offending employers are paying.

Please contact us for additional information about protecting your business during the COVID-19 pandemic.

OSHA Imposes Mandatory COVID-19 Vaccination and Testing Policy on Employers with 100+ Employees

By Anita Byer, Setnor Byer Insurance & Risk

The Occupational Safety and Health Administration announced a new emergency temporary standard (ETS) to reduce the spread of COVID-19 in the workplace. It generally requires private employers with 100 or more employees (covered employers) to develop, implement and enforce a mandatory COVID-19 vaccination policy. Alternatively, covered employers can adopt a policy requiring employees to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. The ETS is effective as of November 5, 2021, but covered employers have thirty days to comply with most of its provisions.

In addition to implementing a COVID-19 vaccination / testing policy, covered employers must:

  • Determine each employee’s vaccination status, obtain proof of vaccination and maintain records (and a roster) of each employee’s vaccination status.
  • Provide reasonable time (up to 4 hours) for employees to get vaccinated and reasonable time and paid sick leave to recover from any side effects.
  • Ensure that each unvaccinated employee is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).
  • Require employees to provide prompt notice of a positive COVID-19 test or diagnosis.
  • Immediately remove any employee, regardless of vaccination status, who received a positive COVID-19 test or diagnosis and keep them out of the workplace until return-to-work criteria are met.
  • Require unvaccinated employees to wear a face covering when indoors or in a vehicle with another person for work purposes.
  • Provide employees with information about: the ETS and its requirements; vaccine efficacy and safety; protections against retaliation and discrimination; and criminal penalties for knowingly supplying false statements or documentation.

The ETS does not require employers to pay for testing, though some may be required to do so to comply with other laws, regulations or collective bargaining agreements. Employers are also not required to pay for face coverings. OSHA posted additional information and resources, including FAQs, policy templates and fact sheets, at COVID-19 Vaccination and Testing ETS.

This is obviously a momentous policy change with far-reaching implications. In the coming days, covered employers nationwide will be digging through the 150-page ETS (triple column, single-spaced) to learn more about its specific requirements because the devil, as always, is in the details. State governors and attorneys general are no doubt doing the same. Some have already announced their intention to oppose the ETS in court. This is just the beginning.

Novelty and uncertainty always increase the likelihood of mistakes and the need for Employment Practices Liability Insurance. Please contact us for additional information about protecting your business during the COVID-19 pandemic.

The Case for Employment Practices Liability Insurance

By Anita Byer, Setnor Byer Insurance & Risk

The case for employment practices liability insurance (EPLI) has never been stronger. Businesses are operating in a rapidly changing environment that keeps producing unprecedented, previously unimaginable challenges. COVID-19, #MeToo, gig workers, remote workers, medical marijuana, CDC guidance, quarantines, vaccines, Zoom meetings—the list goes on. Every business with employees is at risk. Yet, far too many businesses go without EPLI. Sure, they have their reasons, but most of them are actually myths. Let’s look at a few.

None of my employees would ever sue me. Let’s assume this is true (even though it’s not). Equal employment opportunity laws, like Title VII of the Civil Rights Act, protect applicants. They also protect new employees starting day one. How do you know what they will do? It’s also hard to predict what a desperate employee might do, regardless of how long they’ve been employed. Relying on the charity of others is not an effective risk management strategy.

Our organization complies with all employment laws. Virtually all businesses make a good faith effort to comply with applicable employment laws, but this isn’t always enough. Mistakes happen.

We are too small to worry about employee lawsuits.  Every business with employees is at risk, regardless of size. In fact, smaller businesses tend to operate casually and informally, which may increase the likelihood of a claim. And, smaller businesses often lack the resources to have HR professionals or legal counsel on staff to prevent or respond to employment-related claims.

We have an excellent HR department. That’s great! Large businesses have them too, and they get sued all the time. This reason also ignores the fact that HR policies and directives do not always filter down to the entire workforce.

EPLI is too expensive. This can be a legitimate reason, but it’s usually not. Instead of focusing on the policy premium, businesses need to consider the cost of not having EPLI. If you think the premium is expensive, just wait until that first bill from your attorney arrives. Remember, defense lawyers don’t accept contingency fees; they are paid by the hour. It’s also worth noting that EPLI policies are competitively priced, so the premiums are relatively low.

None of these reasons will protect against employment-related claims like an employment practices liability insurance policy. There is a world of difference between dealing with (and paying for) the defense of an employment practices lawsuit and filing a claim under an EPLI policy. One option is not only cheaper, but it provides a peace-of-mind that allows the organization’s focus to remain on the continued successful operation of the business. Needless to say, the alternative is much, much worse.

Please contact us to discuss the true cost and value of employment practices liability insurance.