Employment Practices Liability Insurance

Day One: Monday, January 25, 2010

7:00 Registration and Continental Breakfast

8:00 Co-Chairs’ Opening Remarks

Wanda E. Flowers
Chief Counsel, Labor, EEO & Employment
Sunoco, Inc. (Philadelphia, PA)

Patrick Hicks
Shareholder
Littler Mendelson P.C. (Las Vegas, NV)

8:15 EPL and the Obama Administration: Assessing and Preparing for New and Emerging Legislation, Regulations, and Amendments Affecting Employment Practices

Shacara N. Delgado
Senior Vice President
Employment & Benefits Law
Realogy Corporation (Parsippany, NJ)

Kirsten Hotchkiss
Senior Vice President
Corporate Services Compliance & Employment Counsel
Wyndham Worldwide (Parsippany, NJ)

Patrick Hicks
Shareholder
Littler Mendelson P.C. (Las Vegas, NV)

• Challenges for employers and carriers faced with an administration that is notably employee-friendly
• Impact of the new administration on EPLI in the near-term
• Anticipating and preparing for a shift in the priorities and initiatives of the EEOC
• Implications of increased funding
• Responding to the EEOC’s increased scrutiny of qualification testing and background checks
• Managing leaves of absence in the wake of the new FMLA regulations
• New employer obligations
• Pitfalls to avoid
• Assessing the expanded qualifying conditions for leaves of absence and incorporating them into your employment practices
• Best practices for revising leave of absence policies and procedures
• Updating leave of absence forms to conform with the new regulations
• The Lilly Ledbetter Act and compensation discrimination
• How courts have applied the Act and its impact on EPL
• Managing compensation discrimination claims arising from alleged discrimination that took place years ago
• Preparing for the Employee Free Choice Act
• How the Act will impact employer practices

9:30 Impact of the Supreme Court on EPL: Ricci, Recent ADEA Decisions, and the Changing Composition of the Court

The Honorable Mark W. Bennett
United States District Court Judge
Northern District of Iowa (Sioux City, IA)

Wanda E. Flowers
Chief Counsel, Labor, EEO & Employment
Sunoco, Inc. (Philadelphia, PA)

Corie Pauling
Senior Counsel, TIAA Employment & Benefits Law Group
TIAA-CREF (Charlotte, NC)

Cyrus Mehri
Founding Partner
Mehri & Skalet, PLLC (Washington, DC)

• Assessing the Ricci decision and its consequences for employers
• Impact on employers’ diversity initiatives
• Considerations when conducting RIFs
• Defending against discrimination claims arising from the Ricci decision
• Ensuring that employment practices satisfy the new standards set by the decision
• Insurer perspective: How carriers are responding to the fallout from this decision
• The ADEA and the Supreme Court
• Gross v. FBL Financial Services, Inc. and “mixed-motives”
  • Likelihood that Congress will amend the ADEA to legislatively overturn Gross
• Meacham v. Knolls Atomic Power Laboratory
• Anticipating Judge Sotomayor’s impact on cases involving employment practices

10:45 Morning Coffee Break

11:00 Keynote Address: EEOC Plans for 2010 and Beyond

Constance S. Barker
Commissioner
U.S. Equal Employment Opportunity Commission (Washington, DC)

• Amount, frequency and types of claims in 2009
• Trends in enforcement actions brought by the EEOC
• Lessons from the most significant claims in 2009
• Litigation and enforcement priorities for 2010 and beyond
• Pending cases to watch out for in 2010
• Defending your case before the EEOC: Common mistakes and how to avoid them

12:00 Networking Luncheon for Speakers and Delegates

1:15 Negotiation, Mediation, Arbitration, and Settlement of EPL Claims: Strategies and Techniques for Engaging in Successful Alternative Dispute Resolutions

Deanna M. Beacham
Assistant Vice President
Chubb & Son, a division of Federal Insurance Company (Warren, NJ)

Brett G. Rawitz
Managing Counsel – Global Labor & Employment Law
McDonald’s Corporation (Oak Brook, IL)

Gerald L. Maatman, Jr. – Defense perspective
Partner
Seyfarth Shaw LLP (Chicago, IL)

Stephen H. Kahn – Plaintiffs’ perspective
Founding Partner
Kahn Opton, LLP (Fort Lee, NJ)

Moderator:

Kenneth P. Carlson, Jr.
Partner
Constangy, Brooks & Smith, LLP (Winston-Salem, NC)

• Assessing the costs of litigation
• Which cases have the greatest potential for large damages awards and why?
• Key break points during litigation at which to consider mediation
• Persuading employees, employers, and carriers to attempt mediation
• Conducting a cost/benefit analysis of your risks and your options
• The insured-carrier dynamic:
• Achieving a result that is satisfactory to both parties
• Balancing monetary versus non-monetary provisions in a settlement
• Impact that a “hammer clause” can have on the settlement decision
• Participation of claims representatives in mediations
• Settling class and collective actions
• How settling an employment class action differs from settling individual claims
  • Fairness hearings
  • Standards that each party must meet
  • Approval
  • Notice hearings
  • Common pitfalls to avoid
• Assessing the merits of arbitration as a means of resolving a discrimination, harassment or other employment practices claim
• Quantifying the perceived efficiencies and cost savings of pursuing arbitration rather than litigation
• Addressing the perception that an arbitration panel is more likely than a court to issue a compromise decision – and if so, why?
• Whether arbitration results in a decreased likelihood of settlement as compared to litigation
• Other pros and cons of arbitration compared with litigation
• Determining whether to require employees to sign mandatory, binding arbitration agreements and whether such agreements are enforceable
• Evaluating the potential for legislation that would prohibit mandatory pre-dispute arbitration agreements and its impact on employment practices and EPLI

2:30 Keynote Address by The Honorable Mark W. Bennett

The Honorable Mark W. Bennett
United States District Court Judge
Northern District of Iowa (Sioux City, IA)

Mark W. Bennett, United States District Court Judge for the Northern District of Iowa, argued the seminal case Evans v. Oscar Mayer Co. in the United States Supreme Court. Judge Bennett has a keen interest in technology and was instrumental in the development of case management software that is now being utilized by federal district judges across the country. Additionally, Judge Bennett frequently teaches at the U.S. Department of Justice National Advocacy Center and has co-authored a book entitled Employment Relationships Law & Practice.

3:00 Afternoon Refreshment Break

3:15 Staying Ahead of the Curve in Wage & Hour Litigation

Stephen B. Harris
Assistant Vice President and Assistant General Counsel
The Hartford Financial Services Group, Inc. (Hartford, CT)

Michele A. Molfetta
Senior Staff Attorney, Labor, Employment and Benefits Group
Consolidated Edison Company of New York (New York, NY)

A. Craig Cleland
Shareholder and Co-Chair of Ogletree Deakins’
Class-Action Practice Group
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
(Atlanta, GA)

David Long-Daniels
Shareholder
Chair of the Atlanta Labor and Employment Practice
Greenberg Traurig, LLP (Atlanta, GA)

Moderator:

Paul J. Siegel
Partner
Jackson Lewis LLP (Melville, NY)

• Practical impact of the FLSA and California statutes on wage and hour litigation
• Impact of CAFA on the FLSA and related state law claims
• Defending against the increasing number of copycat cases being brought by aggressive plaintiffs’ counsel
• Reducing risk related to wage and hour practices
• Defending against new wage and hour claims
• Automatic deduction claims
• Claims brought under state wage and payment laws
• Off-the-clock claims
• Broker and carrier responses to competitive pressure for enhanced coverage:
• Trends in defense-only and indemnity coverage
• Best practices for underwriting defense-only coverage
• Minimizing the risks of litigation
• Revising wage and hour policies
• Conducting wage and hour audits

4:30 Discrimination Claims: Minimizing Exposure to Age, Caregiver, Pregnancy, and Disability Claims

Kathleen M. McKenna
Partner
Proskauer Rose LLP (New York, NY)

Karl R. Lindegren
Partner
Fisher & Phillips LLP (Irvine, CA)

• Defending against discrimination class actions
• Impact of Dukes v. Wal-Mart
• Managing the heightened risk of age discrimination claims tied to the increase in RIFs
• “Reasonable factors” other than age
• Impact of the Supreme Court’s decision regarding “mixed-motives” in ADEA cases
• Implementing measures to manage the increasing number of pregnancy discrimination claims
• Mitigating exposure to caregiver discrimination claims
• Evaluating the new EEOC guidance relating to caregivers
• Assessing whether to implement new company policies that address caregiver discrimination
• Addressing discrimination claims relating to qualification testing and background checks
• Responding to the ADA Amendments Act as well as new regulations and claims arising from the Act
• Assessing employer and carrier exposure to new liabilities
• Formulating and implementing new policies and procedures to minimize such exposures
• Managing disability discrimination claims tied to the amendments
• Anticipating and preparing for new EEOC regulations
• New areas of risk for employers from the Genetic Information Nondiscrimination Act (GINA)
• Implementing policies and procedures to reduce exposure to claims arising from GINA

5:30 Conference Adjourns

5:30 Cocktail Reception Hosted by

Day Two: Tuesday, January 26, 2010

7:30 Continental Breakfast

8:00 Co-Chairs’ Remarks

8:05 The Economy and EPLI: Responding to Pressure in a Softening Market and Mitigating the Impact of Employer Bankruptcies on Carriers

Adeola I. Adele
Senior Vice President, National EPL Product Leader
Marsh Inc. (New York, NY)

Miles R. Afsharnik
Vice President, Director, National Claims and Legal Resource
Professional Risk Group
Wells Fargo Insurance Services USA, Inc. (New York, NY)

Ann M. Longmore
National Practice Leader, Global and Financial Risks Practice
Willis Group Limited (New York, NY)

Thomas P. Hams
Managing Director, National EPLI Practice Leader
Aon Financial Services Group (Chicago, IL)

Nicole M. Baummer
Assistant Vice President
EPL and Governmental Liability Claims
Allied World / Darwin (Farmington, CT)

Moderator:

Richard S. Betterley, CMC
President
Betterley Risk Consultants, Inc. (Sterling, MA)

• Trends in the EPLI marketplace relating to changes in coverage and changes in cost
• Carrier strategies for achieving profitability in the current economy
• Impact of market conditions on rates and deductibles
• How brokers are representing their clients in the current market
• Unique factors to consider in underwriting new and emerging risks
• Effects of employer bankruptcies on carriers and impact on EPLI coverage
• Measures carriers can take to protect themselves
• Indications that an insured may be in financial trouble
• How a slow economic recovery (with little or no job growth in the near-term) will impact the EPLI market
• Assessing and monitoring the financial stability of carriers in the current EPLI market

9:10 Managing and Defending Against the Recent Surge in Retaliation Claims and Minimizing Future Exposure to Such Claims

Elizabeth Grossman
Regional Attorney
New York District Office
U.S. Equal Employment Opportunity Commission (New York, NY)

Roxane Marenberg
Director, Legal Employment Services
Cisco Systems, Inc. (San Jose, CA)

Ivan D. Smith
Partner
Lewis Brisbois Bisgaard & Smith LLP (New York, NY)

Moderator:

Leslie A. Lajewski
Partner
Coughlin Duffy LLP (Morristown, NJ)

• Overcoming jury sympathy for employees and bias towards employers in retaliation cases
• Preventing and minimizing punitive damages in retaliation cases
• Interpreting “adverse action”: How broad is it?
• Distinguishing between legitimate claims and disgruntled employees
• Underwriting coverage in light of recent case law developments
• Insurability of punitive damages in retaliation claims
• Countering the usage of discrimination and whistleblower claims as precursors to retaliation claims
• SOX-related claims
• Preventing retaliation claims on the basis of an invalid discrimination claim
• Improving the likelihood of succeeding at summary judgment
• Implementing risk management techniques, including:
• developing and implementing an effective anti-retaliation policy
• monitoring supervisors for adverse actions following an employee complaint
• implementing a reporting process for unlawful retaliation
• resolving employee complaints fairly and confidentially
• when and how to conduct an internal investigation
• evaluating adverse employment decisions before they are implemented

10:20 Morning Coffee Break

10:30 How Carriers, Insureds, and Defense Counsel Can Best Work Together to Reduce EPL Risks and Minimize Costs

Joni F. Mason
Senior Vice President
Executive Liability, a division of Chartis (New York, NY)

Joanne Lloyd-Bragg
Vice President, Claims Manager
AXIS Professional Lines (Berkeley Heights, NJ)

Janet B. Dreifuss
Senior Vice President, Director of Claims, Executive Risk
Alliant Insurance Services (New York, NY)

Joseph A. Starr
Partner
Lipson, Neilson, Cole, Seltzer & Garin, P.C.
(Bloomfield Hills, MI)

Moderator:

Michael W. Hawkins
Partner
Dinsmore & Shohl LLP (Cincinnati, OH)

• What carriers expect from defense counsel and why
• Gaining a deeper understanding of the motives and interests of both insureds and carriers when they are faced with EPL claims
• Ensuring that the carrier is properly represented at all stages of an EPL claim
• Coordinating the defense with the insured and the carrier
• Considerations when selecting counsel
• Use of panel counsel
• Maintaining separation between defense counsel and coverage counsel

11:45 Networking Luncheon for Speakers and Delegates

1:00 E-Discovery and EPLI: Overcoming the Challenges Associated with the Preservation and Production of Electronically Stored Information (ESI) and Incorporating E-Discovery Considerations Into EPLI Cases

The Honorable Andrew J. Peck
United States Magistrate Judge
Southern District of New York (New York, NY)

Daniel Kulakofsky
Managing Counsel, Director of Electronic Discovery
The Travelers Companies, Inc. (Hartford, CT)

Dana Scott, Esq.
E-Discovery Specialist, Electronic Discovery Resource Group
Chubb & Son, a Division of Federal Insurance Company
(Simsbury, CT)

Paul Weiner, Esq.
National E-Discovery Counsel
Littler Mendelson P.C. (Philadelphia, PA)

• Ensuring that the burdens of e-discovery do not overwhelm the merits of the case
• Practical tips for overcoming the unlevel playing field created by the fact that the employer often has most or all of the relevant documents and ESI
• Managing the costs and logistics of collecting, preserving, reviewing, and producing ESI
• Mitigating the risk of sanctions for e-discovery violations and the costs to employers and carriers for such sanctions
• Strategies that appropriately account for e-discovery costs
• Ensuring that your employee knowledge base is sufficient to meet the demands of e-discovery
• Anticipating and preparing for emerging complexities in e-discovery, including recent case-law developments and trends

1:55 EPL Issues Arising from Employee and Employer Use of Social Networking Sites, Blogs, and Other New Media

Ellen M. Hoadley
Director of Risk Management
Lexington Insurance / Chartis (Boston, MA)

Catherine M. Padalino
EPL Product Manager
Chubb Specialty Insurance (Warren, NJ)

Leslie A. Lanusse
Partner
Adams and Reese LLP (New Orleans, LA)

• Determining whether to make use of social networking sites to obtain information concerning potential or current employees
• Conducting a background check prior to hiring an individual
• Evaluating the risk of liability for employee privacy rights violations
• Using the information obtained to make employment decisions
• Assessing the potential for employer liability arising from employee activities on social networking sites and blogs, both on and off of corporate time
• Mitigating the risks associated with employee use of new media
• Best practices for new policies and procedures
• Managing the claims that arise out of employer and employee use of such sites
• Implications for EPLI coverage

2:50 Reductions in Force: Conducting a RIF in a Manner That Will Minimize Both Exposure to Risk and the Potential for Negative Press

Erica E. Larsen
Sr. Counsel, Employment & Benefits Law Group
Sun Microsystems, Inc. (Menlo Park, CA)

Wanda M. Morris
Counsel, Employment & Labor Law
The Home Depot (Atlanta, GA)

Mercedes Colwin – Defense perspective
Managing Partner
Gordon & Rees, LLP (New York, NY)

Anne Golden – Plaintiffs’ perspective
Partner
Outten & Golden LLP (New York, NY)

Moderator:

Anne Ciesla Bancroft
Partner
Fox Rothschild LLP (Princeton, NJ)

• Managing RIFs so as to minimize exposure to EPL claims
• Best practices for drafting termination papers
• Ensuring that employers obtain the proper releases and are protected by secure and enforceable agreements
• How EPL insurance coverage factors into RIF determinations
• Counseling employers who are under intense pressure to conduct RIFs in a narrow timeframe
• What in-house and outside counsel need to know in order to help employers mitigate risk
• Conducting RIFs in an appropriate and thought-out manner so as to minimize the negative impact on employees
• Best practices for minimizing negative press and media attention when conducting RIFs

3:50 Conference Ends

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