Is that your defense, Mr. Jones?
“I was only kidding”; “it didn’t happen like that”; “it was consensual”; “she wanted it”; “it was no big deal”; “I’m innocent”; and the ever popular, “I’m old and blind.”
What the heck is going on in the world? Employers are feeling like this is a game of whack a mole with employee issues. One gets solved, the next one pops up. Even Google employees took a full day to walk off the job in protest—by the thousands—all over the world. What just happened to our world?
This apparently is not something new. What is new is the social media interaction that allows people to realize that they are not the only one with a problem of being harassed. That gives them strength to come forward, possibly even some opportunistic situations, but likely not, in most cases.
Employees have become aware that there are workplace issues, and are beginning to take action. They are too sensitive, you say? It’s innocent and they should suck it up? Unfortunately, that seems to be a genie that will never return to the bottle. From here forward, the rules have changed in the workplace, and employers will just have to deal with it.
For years, workers compensation carriers have required that employee handbooks be in place, and that they cover employee interactions. Very often, the rules were not observed. Now the game has changed.
Employers will now have to be ever so much more cautious about creating a workplace that is safe and treats everyone equally. That goes for men as well as women. I personally know of a situation where a married male friend of mine was sexually pressured by his supervisor, also a male. This ultimately caused a mental breakdown of my friend. At the time, 30 years ago, there was no recourse for him, but to quit a really good aerospace job.
Even if you are an employer who runs a “clean shop,” treats everyone well, and makes sure that nothing unseemly happens between employees in his business, he may still be accused by a disgruntled employee for something that is not the case. The ensuing reputation damage and legal costs could break the bank. What is to be done?
There is an insurance coverage that has been around for more than 20 years, called Employment Practices Liability Insurance; EPLI. Our agency has been writing this coverage for years, but many employers have not wanted to step up and purchase it, because they felt that their house was clean and nothing could happen. “look, nothing has happened in all these years; why would it now?”
As a result of social media, people are more aware now, and that is making it far more likely that something will happen going forward.
So what is EPLI coverage? It has a number of coverages that span many areas. Here is a partial list:
- violation of any federal, state, local or common law, prohibiting any kind of employment-related discrimination;
- harassment, including any type of sexual or gender harassment as well as racial, gender, religious, national origin, sexual orientation or preference, transgender status, pregnancy, disability (including HIV), marital or family status, mental status, age, obesity, genetic information or predisposition (including BRCA status) – based harassment and including harassment via Social Media and workplace harassment by non-employees;
- abusive or hostile work environment;
- workplace bullying;
- wrongful discharge or termination of employment, whether actual or constructive;
- breach of an implied employment contract, breach of the implied covenant of good faith and fair dealing, or promissory estoppel;
- breach of an actual or alleged written employment contract as long as another Wrongful Employment Practice is also alleged;
- wrongful failure or refusal to hire or promote, or wrongful demotion;
- wrongful failure or refusal to provide equal treatment or opportunities;
- employment termination, disciplinary action, demotion or other employment decision that violates public policy or the Family Medical Leave Act or similar state or local law;
- defamation, libel, slander, disparagement, false imprisonment, misrepresentation, malicious prosecution, or invasion of privacy;
- wrongful failure or refusal to adopt or enforce adequate grievance policies or procedures;
- wrongful, excessive or unfair discipline;
- wrongful infliction of emotional distress, mental anguish, or humiliation;
- Privacy Violation
- retaliation, including retaliation for exercising protected rights, supporting in any way another’s exercise of protected rights, or threatening or actually reporting wrongful activity of an Insured such as violation of any federal, state, or local “whistleblower” law;
- wrongful deprivation of career opportunity with the Insured Company, negligent evaluation or failure to grant tenure;
- improper use of background checks in any employment decision to hire, fire, discipline, promote or demote;
- violation of the Uniformed Services Employment and Reemployment Rights Act or other federal, state or local statute protecting the reemployment of military personnel; or
- negligent hiring or negligent supervision of others, including wrongful failure to provide adequate training, in connection with 1 through 19 above,
- Employment Event Loss
- “Employment Event” means any of the following events, which shall be deemed to commence (i) when an executive officer of the Insured Company first believes in good faith that it is more likely than not that such event will occur within the next sixty (60) days, or (ii) with respect to 5. below, when the event occurs, whichever is earlier:
And there is more, but the above list is enough to strike fear into the strongest employer and have them wonder if it is all worth it.
What is also covered is the cost of legal fees, so an employer can protect herself if accused.
How much does this all cost? At one time it was less costly than it is now, but since the two famous Hollywood cases from the past two years, the cost has risen along with the likelihood that more employers could have disgruntled employees.
Is it worth it? you bet. As with all insurance, it’s much cheaper to insure than it is to pay out of pocket once there is a lawsuit.
How do you find out if it is for you? let us help. Give us a call and we can help sort it out for you.