EMP202: The Risk Manager’s Role in
Mitigating Employment Practices
Liability Losses
Recording of this session via any media type is strictly prohibited.
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• Adeola I. Adele
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SVP, EPL Product Leader, Marsh
• Kelly O’Shea
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Director, Risk Management, Xylem, Inc.
• Gail Sider, Esq.
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EPL Team Manager, Zurich North America
Recording of this session via any media type is strictly prohibited.
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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
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The Risk Manager’s Role
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The Risk Manager’s Role
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Conduct underwriting meetings providing key company
information
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Business overview
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EPL risk profile
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History, nature of business, and industry
Composition of Board and other key decision makers
Financial condition and stability, referencing profitability
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
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The Risk Manager’s Role
• Educate internal stakeholders
o Conduct strategy session with the Legal department
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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
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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
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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
o Have an HR and/or Legal department representative attend with
you if possible
o 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
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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
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Non-bordereau reporting
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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
Claims that must be reported individually
There is no such a thing as over-reporting of claims
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The Carrier’s Perspective: Common Pitfalls
to Avoid
• Defense of claims
o Panel counsel or non-panel counsel
– Jurisdictional issues
– Pre-endorsing choice of counsel
– Applicable hourly rates
– Litigation management guidelines
– Legal fees review/carrier audits
o Communication with insurer regarding status of claim and
litigation strategy
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The Carrier’s Perspective: Common Pitfalls
to Avoid
• Settlement of claims
o 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
o Allocation issues
– Covered and uncovered claims
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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
Recording of this session via any media type is strictly prohibited.
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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
Recording of this session via any media type is strictly prohibited.
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