1. CPCU IDay Bloomington Illinois
Employment Practice Liability
Libby Benet, November 8, 2018

2. Legal Environment
It is illegal to discriminate against someone in employment on the basis of a protected class as defined in federal and state law.
It is also illegal to retaliate against someone in employment because they have asserted their rights under these laws.

3. Legal Environment Forum State Illinois Department of Human Rights
State Court
Federal
Equal Employment Opportunity Commission; US Department of Labor
Federal Court

4. Major Federal Legislation
Fair Labor Standards Act (FLSA)
Family and Medical Leave Act (FMLA)
The Uniformed Services Employment and Reemployment Rights Act (USERRA)
Title VII of the Civil Rights Act of 1964 (Title VII)
The Pregnancy Discrimination Act
The Equal Pay Act of 1963 (EPA)
The Age Discrimination in Employment Act of 1967 (ADEA)
Title I of the Americans with Disabilities Act of 1990 (ADA)
The Genetic Information Nondiscrimination Act of 2008 (GINA)

5. State Law
The Human Rights Act (“Act”) prohibits discrimination in Illinois with respect to employment, financial credit, public accommodations and real estate transactions. Within those areas, the Act protects the bases of race, color, religion, sex (including sexual harassment), national origin, ancestry, military status, age (40 and over), order of protection status, marital status, sexual orientation(which includes gender-related identity), pregnancy, unfavorable military discharge and physical and mental disability. The Act also prohibits sexual harassment in education; discrimination because of language, citizenship status and arrest record in employment; and discrimination based on familial status in real estate transactions. The Act further prohibits retaliation against a person who filed a charge of unlawful discrimination, opposed discrimination, or participated in an investigation or other proceeding under the Act.

6. State Administrative Activity

7. EEOC Charges

8. Coverage in the Marketplace
EPL coverage is typically claims made with a wrongful acts retro date.
Claims Covered by EPLI
Sexual harassment.
Wrongful termination.
Discrimination based on certain prohibited categories, such as age, race and sex.
Retaliation.
Failure to promote.
Defamation or libel.
Invasion of privacy.
Employment-related misrepresentation, such as making promises and representations to potential employees that turn out to be untrue.
Less common – Wage and Hour, OSHA, Immigration and Workplace Violence

9. Limits, Retentions Vary by Size of Risk

10. EPLI Marketplace
EPLI has been a mature market for many years, with sales growing an average of 4.4% over the past 4 years in the U.S., according to Betterley’s Employment Practices Liability Insurance Market Survey
According to MarketStance, in 2016 gross written premium for EPLI was $2.1 billion. EPLI growth has primarily been driven by modest employment growth and rate increases. The firm estimates a possible bump to $2.3 billion or more for

11. “Risky” Factors
Changes in enforcement priorities and society’s attitudes:
Anita Hill and Clarence Thomas hearing 1991.
Shortly after the Thomas confirmation hearings, President George H. W. Bush dropped his opposition to a bill that gave harassment victims the right to seek federal damage awards, back pay, and reinstatement, and the law was passed by Congress. 
One year later, harassment complaints filed with the EEOC were up 50 percent and public opinion had shifted in Hill's favor.

12. “Risky” Factors
Changes in enforcement priorities and society’s attitudes:
#MeToo. The ‘me too.’ movement was founded in 2006 to help survivors of sexual violence, particularly Black women and girls, and other young women of color from low wealth communities, find pathways to healing.
According to the NYT, article published October 29, 2018, #MeToo Brought Down 201 Powerful Men. Nearly Half of Their Replacements Are Women.

13. “Risky” Factors
Changes in enforcement priorities and society’s attitudes:
Sexual Orientation
22 states protect both public and private employees from discrimination on the basis of their sexual orientation.
In the other 28 states, Title VII is the only possible protection.
There is a split in the Circuit Courts as to whether sexual orientation discrimination is a form of sex discrimination. Likely will head to the US Supreme Court

14. “Risky” Factors
Changes in enforcement priorities and society’s attitudes:
Immigration Enforcement
The Trump administration in January of this went after employers who hire undocumented workers by launching a widely publicized series of raids at close to Eleven locations in towns and cities across the country.
Under the Obama administration, a memo issued in April 2009, just a few months after taking office, announced that ICE raids at workplaces would focus less on the employees working the factory floors and picking crops and more on their managers and bosses.

15. “Risky” Factors
Changes in enforcement priorities and society’s attitudes:
Gig economy – are they employees or independent contractors?
Employees have employment rights whereas Independent Contractors do not.
This is a classification issue for employers and a wage and hour issue.
According to the DOL, 21.4M workers work in contingent or alternative work arrangements.

16. “Risky” Factors
Changes in enforcement priorities and society’s attitudes:
The Party In Office
2017 the EEOC announced that it would require private employers with 100 or more employees to report detailed salary and pay information. In 2018, the Office of Information Regulatory Affairs recently postponed this change indefinitely. States, however, continue passing their own laws to address pay disparity.
Joint employer liability is a significant area of concern especially for franchise, hospitality and staffing industries. The administration rescinded a 2016 DOL interpretation that favored a very broad standard but the law itself did not change.

17. Thank you Any Questions?