Recently, one of the country’s most celebrated chefs agreed to settle lawsuits filed by two women claiming sexual misconduct. The lawsuits involved separate incidents in Boston, one in 2016 and one in 2017. Attorneys for the two women released a joint statement indicating the matters had been resolved to the satisfaction of all parties and they could not comment further due to confidentiality obligations.[i] The celebrated chef had consistently and vigorously denied the allegations in both these lawsuits and in criminal complaints previously filed against him for sexual misconduct.
These lawsuits serve as a good reminder of why Employment Practice Liability Insurance (EPLI) can be valuable. EPLI is insurance designed to protect businesses against loss incurred while litigating employment practices liability claims involving employees who have not conducted themselves appropriately. General business liability insurance does not usually cover these types of claims and Directors’ and Officers’ liability insurance only protects individuals, not companies. EPLI fills in this gap in coverage, and for this reason, is usually offered as gap insurance.
EPLI provides coverage for costs incurred for defending a lawsuit related to employees such as sexual harassment, discrimination, breach of contract, and wrongful termination. In addition to covering wrongful acts which occurred in the scope of employment, it covers wrongful acts related to hiring employees and terminating employees. As is true with other types of insurance policies, certain acts may be excluded from the EPLI policy which may result in coverage denial. The cost of EPLI insurance can vary widely depending on risk factors such as the type of business, claims history, the number of employees, hiring and termination policies and procedures, business financials and self-insured retention.
Employers should strive to create a work environment and culture that promotes appropriate behavior. To accomplish this, employers should adopt policies and procedures to prevent misconduct and when necessary, address the misconduct. EPLI cannot replace sound employment practices solutions and many insurers even require their insureds to prove such policies are in place before providing coverage.
The need for EPLI is becoming more common as employment related lawsuits are on the rise. Employers must prepare themselves to absorb the risk of loss from these types of claims. Without an EPLI plan in place, employers may be putting themselves in a dangerously vulnerable position because the cost to defend employment related claims can be substantial and financially devastating. If an EPLI policy is in place, however, and an employment related claim is filed, the insurer can offer the expertise of expert defense firms, such as Tyson & Mendes, to defend against the claims.
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[i] CNN Entertainment, https://www.cnn.com/2022/08/24/entertainment/mario-batali-lawsuits-settled/index.html (last visited September 15, 2022).