By Timothy M. Netkovick, Esq.
The COVID-19 pandemic has caused many businesses to examine their balance sheets. One of the areas that could be looked at is how much benefit a business is getting from its current insurance portfolio, and whether downsizing coverage could be an option.
In today’s world, a common feature of a business-insurance portfolio is employment-practices liability insurance (EPLI), which is different than traditional liability insurance and provides coverage for discrimination, wrongful termination, and other workplace issues.
EPLI typically covers discrimination claims based upon sex, race, national origin, age, and all other characteristics prohibited by law. This includes claims made under the Americans with Disabilities Act, the Family Medical Leave Act, associated state discrimination statutes, and other federal laws. EPLI policies usually provide coverage to the company, management, supervisors, and employees from claims that arise under the policy. EPLI typically does not cover wage-and-hour law violations, unemployment issues, ERISA, or COBRA matters.
“COVID has prompted myriad adjustments in the business world. EPLI is one of the expenses a company will want to examine to see if it is getting the most bang for its buck.”
Perhaps your business has been fortunate enough to avoid employment litigation over the past few years. Therefore, the cost/benefit analysis to your business will be different than a business that has been tied up in employment litigation in the recent past. The first obvious cost is the cost of purchasing the policy. Higher insurance coverage costs more than a policy with a lower-policy limit. In addition to the cost of purchasing the policy, businesses will also need to factor in the cost of the ‘retention’ it is required to pay in the event of a claim.
Retention is similar to a deductible in other insurance policies, and is the amount of expenses for which the business is responsible before the insurer will begin paying for the cost of defense. Insurers use retention as a way to avoid incurring the expense of defending against nominal or frivolous claims by passing on that expense to the business. Conversely, the business will also want to evaluate the amount of their retention prior to obtaining EPLI.
A business will need to evaluate its options if it is faced with a high retention and a small amount of discrimination claims that are usually resolved at the administrative level. Has your business had EPLI for several years and never exhausted its retention? Or does your business have a high volume of discrimination cases at the administrative level and also never exhausted its retention?
Another factor to consider in evaluating the cost of EPLI is your company’s approach to employment lawsuits. Businesses will need to have a consistent strategy when it comes to employment lawsuits. Is your company going to vigorously defend against all claims? If so, that may impact your decision on the cost of the EPLI policy you intend to purchase. How many claims are made against your company? The more claims are reported, the more the policy will cost, and the higher the retention amount will be. The increased retention will have an impact on the company’s budget for the next policy period.
COVID has prompted myriad adjustments in the business world. EPLI is one of the expenses a company will want to examine to see if it is getting the most bang for its buck.
Timothy M. Netkovick, Esq. is a litigation attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]