Employment Practices Liability Insurance

Co-Chairs’ Opening Remarks

Joe Kelly
Senior Vice President, Commercial Management Liability
Sompo International

Gerald L. Maatman, Jr.
Partner, Chair, Workplace Class Action Group
Duane Morris

Samantha J. Manfredini Look, Esq.
Vice President, EPLI, Financial Services Group, Commercial Risk Solutions
Aon

2023 REVIEW: Views from the Brokers/Carriers on Claim Trends, New Products Entering into the Market, Underwriting Considerations, Plus Insights on the Defense Counsel Panel

David Garrigus
Executive Vice President - North American Practice Leader – ProEx
HUB International

Brian D. Smith
Senior Vice President
Gallagher Bassett

Erin K. Mannesto, J.D.
Complex Claims Analyst, Financial Lines & Liability – North America
Allianz Commercial

• How brokers are approaching the market: View from the brokers on what clients are most concerned about
• Underwriting considerations as they relate to claims trends and market conditions
• How carriers are responding to EPL claims
• Bringing new products to market: Identifying coverage gaps in the market; underwriting concerns; claims considerations and current exclusions
• Key trends to watch out for:
  • The Pregnancy Fairness Act: What is a known accommodation? Where do regulations stand?
  • To what extent are marijuana claims on the rise: Setting the record straight on the present and future of liability risks
  • Use of AI in the Workplace: How might it impact claims?
  • Non competes under the microscope: Impact on claims risk
• Claims severity: Types of claims and industries with the most claims
  • Social inflation’s impact on increased cost of settlements
  • Is the industry seeing a backlog of claims coming to light?
  • Late claim reporting
• Foreign claims: Insuring US companies with foreign locations; insuring domestic companies with foreign origins; which carriers have these polices and what is being covered

2023 REVIEW: The Clients’ Perspective: Views from In-House Labor and Employment Counsel on Current Trends in the EPLI Marketplace and Post-Pandemic Drivers That Are Underlying the Purchase of Coverage

Beth Mabe Gianopulos
Senior Associate, General Counsel
Atrium Health

Kristina Kerwin
Senior Counsel, Employment Law, North America
Accenture Federal Services

• When is coverage triggered and needed?
• Avoiding lawsuits by minimizing claims: Early resolution strategies:
  • Predicting value of claim if litigated
  • Defining costs of claim
  • Resolving claims early: What do you need to know within the first 60 days
• Best practices for controlling the cost of the defense of claims
  • Payouts; Alternative fee arrangements
  • Implementing internal cost-reduction procedures
  • Reducing the costs associated with the use of defense counsel
• Pitfalls employers should avoid while easing their COVID-era policies
• Vaccination policy trends:
  • Which precautionary policies are being retained?
  • What kinds of claims are still popping up around vaccination?
• Which reasonable accommodations are being preserved?
  • What are the greatest post-pandemic risks around claims?
• Staying compliant with jurisdictional post-COVID requirements: NY, CA
• Practical applications of EEOC post-COVID guidelines
• OSHA requirements and any new guidance
• I-9 compliance: How to update your virtually inspected forms

Extended Networking Break

AI IN THE WORKPLACE

Emerging Themes Governing the Use of AI in the Workplace: Administering the Power of Automation Around Workplace Transparency, Discrimination, and Data Integrity

Letoyia C. Horton
Claims Focus Group Leader-EPL
Beazley Group

Laura R. Lapidus, Esq.
Management Liability (EPL) Risk Control Director
CNA Insurance

Dianna D. McCarthy
Partner
Kaufman Borgeest & Ryan

• Transparency: AI screening in employment decisions. Providing notice to the candidates
  • New York City’s law regulating AI screening
  • Illinois’ law targeting AI used to analyze video interviews
• Anti-discrimination
  • EEOC Title VII guidance; Employers and their responsibility to evaluate their algorithmic decision-making tools for disparate impact, including by considering the “four-fifths” rule
• System and data integrity: Audits, testing, reporting and recordkeeping
  • Jurisdictions where employers’ regular audits and testing of AI systems must assess whether the system results in bias towards certain individuals, privacy risks (i.e., with respect to identifying information) or other known harm or material negative impact
  • California’s Civil Rights Council proposal of new rules that would permit employers to use evidence of anti-bias testing as a defense to allegations of a discriminatory adverse impact of AI or automated system
• New developments in this rapidly evolving area of employment law: Federal, state and local levels
• A potential sea change with the use of AI/ChatGPT within law firms
  • Litigation data, trial transcript analyzing
  • What are the risks around the technology’s accuracy and security, most specifically about how law firms’ concerns of privacy and client confidentiality?
• The benefits of AI as a tool for workplace efficiencies:
  • Goal setting and tracking
  • Time management/work coaching
  • Drafting emails and reports
  • Meeting summaries and action items
  • Customer support
  • INTERVIEW

INTERVIEW

Navigating Employment Discrimination in AI and Automated Systems

Keith E. Sonderling
Commissioner
U.S. Equal Employment Opportunity Commission (EEOC)

Moderator:

Mercedes Colwin
Partner
Gordon Rees Scully Mansukhani LLP

Lunch
Sponsored by:

Magdalen Bickford
Member, Chair Labor and Employment Group
McGlinchey Stafford

RIF’s AND WHITE-COLLAR LAYOFFS

RIF’s and the White-Collar Ripple Effect: Internal Investigations, Avoiding Backlash, and a RIF Compliance Checklist

Jonathan Kurens
Senior Vice President
Marsh USA Inc.

Joe Kelly
Senior Vice President, Commercial Management Liability
Sompo International

• Internal investigations around what will trigger EPL coverage amid a decrease in staff
• White-collar layoffs: Identifying particular insider risks
  • Investigating non-competes
  • Preventing data breaches
  • Protecting intellectual property
  • Skeletons in the closet often uncovered when amid executive-level layoffs
• Mediation and arbitration requirements for potential retaliation around:
  • Sexual (or other workplaces) harassment
  • Wrongful termination
  • Failure to employ or promote
  • Breach of terms of employment contract
  • Negligent evaluation
  • Wrongful discipline, bullying
  • Wrongful infliction of emotional distress
• Navigating jurisdictional employee protection nuances and pitfalls
• Maintaining inter-departmental communications around layoff protocols: Awareness of coverage, record-keeping, gaining advice from internal EPL counsel
• Updating and circulating employee off-boarding procedures
• Fundamentals for checking all the legal compliance boxes in designing and implementing RIF programs

BERMUDA MARKET UPDATE

A 2023 Roundup of Bermuda Insurance Market Trends and What to Expect in 2024

Jan Haylett
Senior Vice President, Bermuda and Global Markets Claims
Allied World Assurance Company, Ltd

Michelle Bailey
Senior Vice President/Underwriter
AXA XL

Duan Leverock
Vice President
Aon Bermuda Ltd.

• Intro to Bermuda marketplace
  • Product availability
  • Who buys in Bermuda?
  • Why Bermuda
• 2023 market challenges:
  • Areas/industries/policies of increased concern
  • Severe claims and impact of social inflation
• 2024 outlook:
  • How are Bermuda market players underwriting risk?
  • Appetite: Attachment levels, pricing, coverage, and overall availability of capacity

Break

Cyber Security, IP and Proprietary Risks: Their Interplay with a Remote/Hybrid Workforce

Jody Kahn Mason
Principal
Jackson Lewis P. C.

Elissa Doroff
Head of Claims, Americas
Mosaic Insurance

• Securing proprietary information while employees work from home
• Determining the lengths and limits of employee access to company data
• BIPA: Management of biometric technology within BIPA rules and potential claims risks
  • Current biometric claims case analyses: Rogers versus BNSF
  • Lessons learned from this case and how to analyze BIPA claims in the future
• 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
• Retaining any recordings, especially of meetings: Legal obligations

The New Normal of the Hybrid Workforce: Addressing Accommodations and Evolving Risks Around Operations in a Multi-Generational Environment

Heather R. Becker
Partner
Laner Muchin

Claudine R. English, Esq.
Vice President, Employment Practices Liability, Crime, and Fidelity Product Officer, Financial Lines-Technical Underwriting
Zurich North America

Rachel Freedman
Vice President - Head of Employment Practices Liability Claims
Sompo International

• The new normal:
  • The new reality of reasonable accommodations in a post-pandemic work environment
  • The importance of addressing mental health of the workforce: Policies and protocols for managers
  • he mounting, and mostly silent, employee experience gap
  • Navigating the pros and cons of remote supervision
    • Piloting increased cyber risks
    • Use of AI and its supervision risks: Privacy, discrimination
  • Managing tax implications for cross-border remote workers
  • The new world of remote work etiquette and harassment claims how to tackle them quickly
    • Dress
    • Harassment: Defining “inappropriate actions” in a remote world
    • Manager training programs
  • Keeping remote workers feeling invested and valued in an employee-empowered environment
• Creating clear return to the office programs: Who’s required to be in the office and why
  • How do you restrict remote work without losing employee engagement/motivation?
  • Managing and mitigating ADA claims for those employees who wish to remain remote

Close of Day One
Cocktail Reception Sponsored by:

Co-Chairs’ Opening Remarks

Joe Kelly
Senior Vice President, Commercial Management Liability
Sompo International

Gerald L. Maatman, Jr.
Partner, Chair, Workplace Class Action Group
Duane Morris

Samantha J. Manfredini Look, Esq.
Vice President, EPLI, Financial Services Group, Commercial Risk Solutions
Aon

INTERVIEW

Recent Developments at the NLRB

Angie Cowan Hamada
Regional Director, Region 13
National Labor Relations Board (NLRB)

Moderator:

Camille Bryant
Member
McGlinchey Stafford

NON-COMPETES THINK TANK

D&O and Non-Competes in the Crosshairs: Issues in Enforcing and Managing Restrictive Covenants amid Extraordinary Regulatory Scrutiny

Jordan Kurkowski
Executive Vice President, Professional Lines
Amwins Insurance Brokerage, LLC

Peter A. Steinmeyer
Partner
Epstein Becker Green

• Recent trends in non-competition clauses
• D&O trusts and captives
• D&O underwriting behaviors
• Securities litigation trends
• Restrictive policy language interpretations
• Federal/jurisdictional trends around use of non-competes
  • MN/NY ban on use of non-competes
  • NLRB: The outcome of the McLaren Macomb decision
  • FTC: Final rule outlook and inevitability of legal challenges
• • An interactive, audience-feedback driven review of sample non-competition clauses and analyses of their enforceability

Break

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

Samantha J. Manfredini Look, Esq.
Vice President, EPLI, Financial Services Group, Commercial Risk Solutions
Aon

Christine Hendrickson
Vice President, Strategic Initiatives
Syndio

Matt May
Divisional Assistant Vice President – Claims, Executive Liability Division
Great American Insurance Group

• Analyzing newly rolled-out state laws and changes to standards for pay transparency: CA, CO
• Impact of the white-collar recession: Impact of job losses on data, state of C-suite executive pay
• Evaluating racial and ethnic pay differences amid social justice issues
• Loosening labor market: Starting salary and retention pay decisions
• Steps to taking a proactive stance toward releasing pay data publicly
• 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

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

Sherron Williams
Senior Vice President, Financial and Professional Lines – Bermuda
Vantage Risk Ltd

Kimberly Lewis
Senior Vice President, Professional Insurance Manager
Argo Group

John Wallace
Chief Insurance Officer
Vouch Insurance

Leticia Kimble
Partner
Raines Feldman Littrell LLP

• The Gig Economy: Status report on employee versus independent contractor classification
• The state of PAGA in 2023:
  • PAGA representative waivers: Permission to prosecute claims of other alleged aggrieved employees
  • Employer assertions that some PAGA claims/cases are unmanageable, and therefore cannot proceed on a representative basis
  • Settling a PAGA case where there exists a concurrent PAGA case with overlapping claims
  • Claims and defense cost expense
• Mixed allegation claims where there is a discrimination claim coupled with W&H allegations
• EPLI changes and how carriers are responding to the continued growth of wage and hour claims
• 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
• FLSA clarity around joint employer liability
• Statute of limitations, waivers and arbitration
  • How far employers can go and where to draw the line

Lunch

COUNSEL/INSURER/POLICY ETHICS

Overcoming the Ethical Dilemmas Associated with the Relationship between Counsel, Insurer and Policyholder

Raymond Cashman, Esq., CPCU
Director, Management Liability and Specialty Claims
Nationwide

Magdalen Bickford
Member, Chair Labor and Employment Group
McGlinchey Stafford

• Examining the unique ethical challenges that arise from the relationship among counsel, insurer and policyholder
• Identifying and navigating the conflicts of interest that arise because of this tripartite relationship
• Analyzing the dual-client dilemma facing counsel retained by an insurance company to represent a policyholder
• Devising strategies for overcoming and avoiding the challenges created by this trichotomy
• Establishing best practices for communicating with plaintiffs and company employees to avoid crossing ethical lines

EPL NEGOTIATION

Negotiation, Mediation and Arbitration of EPL Claims

Laura McKinstry
Senior Claim Counsel
Travelers

Jennifer R. O’Connor
Member
Saiber

• Developing winning strategies for arbitrating EPL claims
• Assessing the challenges of overseas arbitration of EPLI coverage disputes, and tips on how to protect oneself during the process
• Establishing strategies for settling collective and class EPL actions
• Understanding how the actual EPL policy can play a crucial role in the settlement and mediation of cases
• Evaluating recent successes and failures in the use of ADR to resolve EPL claims
• Identifying key break points during litigation at which to consider mediation
• Devising tactics for persuading employees, employers and carriers to attempt mediation
• Assessing the costs of litigation and conducting a cost/benefit analysis to determine your ADR options
• Developing strategies for achieving a result in arbitration/mediation that is satisfactory to all parties
• Assessing the merits of arbitration as a means of resolving a discrimination, harassment or other employment practices claim

Close of Conference