EMP202: The Risk Manager’s Role in Mitigating Employment Practices Liability Losses

1. EMP202: The Risk Manager’s Role in Mitigating Employment Practices Liability Losses

2. Adeola I. Adele • SVP, EPL Product Leader, Marsh • Kelly O’Shea • Director, Risk Management, Xylem, Inc. • Gail Sider, Esq. • EPL Team Manager, Zurich North America

3. What to Expect • Learn the benefits of working with and educating your company’s Human Resources and Legal Departments on EPLI claims reporting, settlement, and the counsel selection process • Understand the importance of building relationships with claims adjusters to ensure favorable claim resolution • Understand key provisions of the EPLI policy that can preclude or limit coverage • Identify best practices to mitigate EPLI losses • .

4. The Risk Manager’s Role

5. The Risk Manager’s Role • Conduct underwriting meetings providing key company information • Business overview • History, nature of business, and industry • Composition of Board and other key decision makers • Financial condition and stability, referencing profitability • EPL risk profile • Footprint, workforce characteristics/makeup, etc. • Employment practices philosophy, culture, values, and any recent changes that may impact same • Industry trends or company events that have positively/negatively affected the company’s brand, employee morale, or client and investor relationships • Overview of claims experience – significant pending and closed claims

6. The Risk Manager’s Role • Educate internal stakeholders • Conduct strategy session with the Legal department • Discuss whether your company handles most litigation internally and associated costs savings from a risk management perspective • Oversight of outside employment counsel, if any • Company ‘s philosophy regarding litigation, settlement, other dispute resolution strategies, and alignment with insurer’s requirements • Conduct training sessions for Human Resources and Legal to review EPLI coverage and key provisions • Definition of “claim” and reporting requirements • Self-Insured Retention/deductible • Provisions around retention of counsel and claims settlement • EEOC charges – how handled and role of HR, Legal, and/or outside counsel

7. The Risk Manager’s Role • Build relationships with claims adjusters • Ask your broker to arrange meetings with the head of the EPL claims department and any assigned claims adjusters • Have an HR and/or Legal department representative attend with you if possible • Be prepared to explain your company’s philosophy with respect to retention of counsel, settlement of claims, litigation practice, and under what circumstances EPL matters are taken to trial

8. The Carrier’s Perspective: Common Pitfalls • Bordereau reporting • Annual, semi-annual, or quarterly • General reservation of rights • Limited carrier involvement once claim has been reported • Specific claims that must be noticed independently of the bordereau • All claims brought by the EEOC or similar state agency • All claims where the company anticipates defense costs will exceed a % of the retention • All claims with 5 or more plaintiffs or a purported class action • Non-bordereau reporting • Claims that must be reported individually • There is no such a thing as over-reporting of claims

9. The Carrier’s Perspective: Common Pitfalls to Avoid • Defense of claims • Panel counsel or non-panel counsel • Jurisdictional issues • Pre-endorsing choice of counsel • Applicable hourly rates • Litigation management guidelines • Legal fees review/carrier audits • Communication with insurer regarding status of claim and litigation strategy

10. The Carrier’s Perspective: Common Pitfalls to Avoid • Settlement of claims • Consent to settle • In most instances, insureds cannot enter into any settlement or expend any legal fees without the carrier’s written consent (unless the policy expressly provides otherwise) • “Settlement provision” applies if the carrier recommends a settlement and the company does not consent • Allocation issues • Covered and uncovered claims

11. Best Practices for Mitigating EPLI Losses • Prepare an overview of key policy provisions • Prepare internal policies and procedures for claims reporting • Practice regular bordereau reporting and utilize internal case management systems to do so • Submit defense invoices on a timely basis • Communicate regularly with the insurer (settlements, mediations, and trials) • Communicate regularly with and involve the broker (to provide claims advocacy as necessary

12. Questions, Final Comments and Contact Information • Adeola I. Adele, Marsh adeola.i.adele@marsh.com • Kelly O’ Shea, Xylem, Inc. kelly.oshea@Xyleminc.com • Gail Sider, Esq., Zurich North America gail.sider@zurichna.com