Employment Practices Liability Insurance

Co-Chairs’ Opening Remarks

Mercedes Colwin
Partner
Gordon Rees Scully Mansukhani, LLP (New York, NY)

Darrell S. Gay
Partner
Arent Fox (New York, NY)

Jonathan Kurens, Esq.
Senior Vice President
Marsh USA Inc. (New York, NY)

Opening Interview

Interview with:

Heather Fox
General Counsel
ARC Excess & Surplus, LLC (New York, NY)

Moderator:

Mercedes Colwin
Partner
Gordon Rees Scully Mansukhani, LLP (New York, NY)

POST-ELECTION BRIEFING & YEAR IN REVIEW

Insurer, Broker and Carrier Perspectives on EPLI Policy Changes and Risk Appetite Amid Covid-19

Angela J. Lee
Associate Director – Claims Advocate
FINEX Claims & Legal Group (Atlanta, Georgia)
Willis Towers Watson

Chris Lavelle, CPCU, RPLU
Second Vice President/EPL National Practice Leader
USLI (Wayne, PA)

As EPLI claims increase as a result of COVID-19, practitioners and policyholders continue to adapt to the new realities of handling them. This important opening session will delve into the new landscape of risk and policies, as well as the outlook for 2021.

Key topics of discussion will include:

• How COVID-19 has affected the industry’s risk appetite and products
• The newest, emerging factors affecting EPLI risk assessments, claims management and policies
• How insurers have changed the way coverage is assessed due to COVID-19
• When an employer carries more or less of a risk
• Carriers’ concerns about staff working from home and returning to the workplace: The rising interplay of personal injury, health and safety, and EPLI claims
• Perspectives on anti-harassment, diversity, inclusion and workplace sensitivity training

Break

Employers and Outside Counsel Discuss What to Flag Now Before It’s Too Late: Revisiting Your Post-Election, 2021 Risk Management Strategy and the Path Forward

Louis P. DiLorenzo
Member
Bond, Schoeneck & King Attorneys (New York, NY)

Brent Wilson
Attorney
Elarbee, Thompson, Sapp & Wilson LLP (Atlanta, GA)

Jane Howard-Martin
Vice President, Labour & Employment/Plant Support
Toyota (Plano, TX)

Steve Chariyasatit
Director & Associate General Counsel. Employment
Instacart (San Francisco, CA)

As EPLI products continue to evolve and expand, practitioners and policyholders need to be aware of the newest, most critical aspects of underwriting, policies, and coverage forms.

In this opening session, leading executives will address the state of the market, and the current trends and forces affecting the future of EPLI risk. Topic include:

• The new administration and anticipated changes at the legislative level and courts
• The continuing impact of COVID-19 and the outlook on risk for 2021

Interview with the EEOC

Charlotte A. Burrows
Commissioner
U.S. Equal Employment Opportunity Commission (EEOC) (Washington, DC)

1:1 Networking

Break

Race, Gender and LGBTQ Discrimination Claims in Practice: Expert Practitioners Discuss Surprising Trends, Developments and Risk Factors

Tope Yusuf
Vice President, Employment
NBC Universal (New York, NY)

Keisha-Ann G. Gray
Partner
Proskauer (New York, NY)

• Recent effects of social justice movements on the workplace
• Update on evolving harassment and retaliation claims based on sex and race
• The practical impact of the SCOTUS decision on Title 7
• The unwritten rules of the road for recruitment, retention and succession planning
• How practitioners are reassessing and mitigating the risk of discrimination claims

Political Speech in the Workplace: Critical Updates and Their Real-World Impact on Liability Risks and EPLI Coverage

Molly T. Senger
Partner
Gibson, Dunn & Crutcher LLP (Washington, DC)

Christopher Williams
2nd Vice President, Employment Practices Liability Product Manager
Travelers

Expert panelists will be analyzing the evolving legal landscape posed by the political developments, policy changes and more. Topics include:

• Balancing religious liberties and freedom of speech
• Determining which policies are advisable or inadvisable for addressing political speech in the workplace
• Determining parameters that are lawful
• When and how far you can go in enforcing the policy

Closing Remarks
Conference Adjourns to Day Two

Co-Chairs’ Opening Remarks

Mercedes Colwin
Partner
Gordon Rees Scully Mansukhani, LLP (New York, NY)

Darrell S. Gay
Partner
Arent Fox (New York, NY)

Jonathan Kurens, Esq.
Senior Vice President
Marsh USA Inc. (New York, NY)

Special Interview

Oris Stuart
EVP, Chief People & Inclusion Officer
National Basketball Association (NBA)

Moderator:

Darrell S. Gay
Partner
Arent Fox (New York, NY)

What Would You Do If…? The Most Vexing Back to the Office Dilemmas and How to Resolve Them: Masks, Social Distancing, Whistleblowing

Dove A. E. Burns
Partner
Obermayer Rebmann Maxwell & Hippel LLP (New York, NY)

Joseph J. Centeno
Shareholder, Co-Chair, Labor, Employment, Benefits & Immigration Section
Buchanan, Ingersoll & Rooney (New York, NY)

Phillip R. Maltin
Litigation Partner and Chair of the Commercial & Employment Risk Control Department
Raines Feldman LLP (Los Angeles, CA)

• Determining how to lawfully and efficiently transfer the work location from on-site to home
• Assessing and monitoring employee productivity and adherence to company health and safety, and other policies
• Proven best practices for a safe return to work: Navigating concerns around social distancing, whistleblowing, anxiety, and conflict resolution
• Understanding OSHA expectations and analyzing the guidance it offers to employers

Lunch Break

Keynote Address

EPLI, Wage & Hour Claims and PAGA Actions: The Newest High Stakes Questions Confronting Practitioners and Their Impact on Defense Strategies

Andrew W. Russell
Partner
Fox Rothschild LLP (Los Angeles, CA)

Scott J. Witlin
Partner
Barnes & Thornburg LLP (Los Angeles, CA)

• The “Gig Economy” Post-Election: Status report on Employee vs. Independent Contractor Classification
• Exploring recent PAGA cases and their impact on future outcomes
• Kim v. Reins
• ZB v. Superior Court
• EPLI changes and how carriers are responding to the continued growth of wage and hour claims amid COVID-19
• Exploring sub-limits on wage and hour claims under EPLI policies
• Assessing how riders or addendums to EPLI policies for wage and hour claims affect the market
• Interpreting recent case law on independent contractor status in California
• DOL activity on joint employer liability in the wage and hour context
• Statute of Limitations, Waivers and Arbitration
• How far employers can go and where to draw the line

Workplace Diversity Case Study: The Lesser Known Takeaways from Bostock v. Clayton County

Rondiene Novitz, Esq.
Managing Partner
Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet, LLP (New York, NY)

Teri E. Robins, JD, MBA
Owner
TR Law Offices LLC (Northbrook, IL)

Our experts will discuss the nuances of the landmark Bostock v. Clayton County case, and the impact on gender and sexual orientation discrimination claims in the employment context.

In addition to dissecting this important case, the panelists will discuss the practical application of this case and the remaining grey areas for interpretation.

1:1 Networking

Break

Cyber Security, IP and Proprietary Risks: Their Interplay with Remote Work and Employee Monitoring

Jonathan Kurens, Esq.
Senior Vice President
Marsh USA Inc. (New York, NY)

Joseph J. Lazzarotti
Principal
Jackson Lewis P.C (Berkeley Heights, NJ)

This session will explore how to manage intensifying cybersecurity and data privacy risks posed by remote work.

• Securing proprietary information while employees work from home
• Addressing cybersecurity and confidentiality concerns when employees work with their personal computers
• Determining the lengths and limits of employee access to company data
• Reconciling the need to leverage new digital platforms with protecting sensitive, confidential data
• Overcoming obstacles to preserving attorney-client and work product privilege when working from home

Anonymous Audience Polling

The Real-Life of Remote Working Arrangements: Employers, Insurers and Outside Counsel Discuss New Approaches to Resolving Disability, Sick Leave, FMLA and Accommodation Claims

Kevin Chapman
Associate General Counsel
News Corp, Dow Jones & Company (Chicago, IL)

Michael Homans
Partner
HomansPeck, LLC (Philadelphia, PA)

Andrez Carberry
Head of Global Talent Supply and Diversity and Inclusion
John Deere (Chicago, IL)

• New trends in disability claims as a result of COVID-19 and how employers are addressing requests for reasonable accommodations
• Ensuring accessibility to websites considered to be a place of public accommodation
• How recent FMLA-related changes across different states have impacted disability claims
• Navigating the interplay of workers compensation with medical leaves of absence
• The extent of an employer’s duty to accommodate employees who do not wish to return to work because of COVID-19 – and what is a disability under the Cares Act
• Determining which accommodations need to be put in place in light of COVID-19 for the Family’s first act

Closing Remarks
Conference Adjourns to Day Three

Co-Chairs’ Opening Remarks

Mercedes Colwin
Partner
Gordon Rees Scully Mansukhani, LLP (New York, NY)

Darrell S. Gay
Partner
Arent Fox (New York, NY)

Jonathan Kurens, Esq.
Senior Vice President
Marsh USA Inc. (New York, NY)

The Uptick in Sexual Harassment Claims in the Context of Remote and In-Person Work: Practitioners Discuss the Finer Points of Investigations, Rising Settlements, and Employee Training

Raymond Cashman, Esq., CPCU
Director, Management Liability and Specialty Claims
Nationwide (New York, NY)

Barbara L. Johnson, Esq.
Founder
BLJohnsonLaw PLLC (Washington, DC)

Kim Vance
Shareholder
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (Nashville, TN)

• How to demonstrate conscious sensitivity and best practices in the workplace
• New approaches to assessing the economic damages in sexual harassment cases
• To what extent there has been an uptick in these cases as a result of COVID-19
• How to assess if training is resonating with employees and how often to re-train
• Navigating the delicate issues affecting the course of investigations
• Trends in settlement outcomes-and what they reveal about the scope of potential liability
• How recent developments have affected the scope of EPLI coverage

Pay Equity Claims: Dissecting Recent Defense Wins/ Losses and The Lesser Known Lessons for Addressing Wage Disparities

Rachel Cowen
Partner
McDermott Will & Emery LLP (Chicago, IL)

Camille Olson
Partner
Seyfarth Shaw LLP (Chicago, IL)

This session will explore the extent to which COVID-19 has fueled more pay equity claims. Topics to be discussed include:

• Defending and covering pay equity claims intermingled with gender discrimination claims
• The new, emerging trends in pay equity litigation and what is coming down the pipeline
• Analyzing newly rolled-out state laws and changes to standards for pay equity

1:1 Networking

Break

Chief Diversity & Inclusion Officer Roundtable: Perspectives on What Really Works for Sensitivity Training (and What Doesn’t)

John Iino
Director, Chief Diversity Officer
Reed Smith LLP (Los Angeles, CA)

Michele C. Meyer-Shipp
Chief People & Culture Officer
Major League Baseball (MLB) (New York, NY)

KeyAnna Schmiedl
Global Head of Culture & Inclusion
Wayfair (Boston, MA)

New for 2021, benefit from an invaluable opportunity to hear big picture insights from some of the country’s foremost Chief Diversity Officers. The session will focus on the practical challenges to enhancing diversity at all levels of the workforce, as well as the impact of recent developments on remaining gaps and inequities.

• Training on anti-harassment, diversity, inclusion and workplace sensitivity: What has worked and what hasn’t
• How BLM has affected employers’ understanding and commitment to diversity
• Exploring best practices to recruit, develop and retain diverse candidates
• Persisting hurdles to retaining women and minorities – and concrete examples of accommodations across the employment life cycle

Restrictive Covenants in Real Life: The Newest Grey Areas Of Non-Competes And Enforceability – Are the Goalposts Moving?

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

John W. Hamlin, Esq.
Chief Counsel, Employment, Benefits and Governance
Marsh & McLennan Companies, Inc. (New York, NY)

Leading practitioners will review sample non-competition clauses and provide helpful analysis on their potential enforceability. Audience members will be able to provide anonymous feedback via a user-friendly polling system – followed by a discussion of the results!

Additionally, our panelists will highlight the evolution of non- solicitation and non-competition clauses resulting from the pandemic and economic downturn.

Biometrics: Critical Takeaways on the New Legal Lengths and Limits of Employee Screening

Laura R. Lapidus, Esq.
Risk Control Director, Management Liability and Financial Institutions
CNA (New York, NY)

Stacey A. Campbell
Shareholder
Campbell Litigation, P.C. (Denver, CO)

• Changes to EPLI cyber policies and coverage for biometric screening
• Technologies that employers may use to take employees temperatures and identify employees
• How carriers view the risks and benefits of biometric screening
• The unwritten rules for protecting sensitive employee information collected with biometric screening and the way screening has changed as a result of COVID-19
• Jurisdictional analysis of state biometric screening laws
• Recent statutory developments in Illinois-and their impact on other states’ legislative activity
• Status and impact of pending legislation affecting biometrics
• How employers are updating and implementing data privacy policies
• Special considerations for healthcare information and potential HIPAA violations

Litigation, Mediation and Arbitration “War Stories”: A Round-Up of The Top 10 Most Effective Strategies for Remote vs. In-Person Proceedings

Gary T. Lafayette
Partner
Lafayette & Kumagai LLP (Oakland, CA)

Philip I. Weis
Director & Senior Employment Counsel
Boehringer Ingelheim USA Corporation (Ridgefield, CT)

In this closing session, expert practitioners will share experiences and concrete examples of the newest challenges to managing cases and how to tailor strategies to the remote vs. in-person context.

Closing Remarks
End of Conference