Lisa Augspurger, Bush & Augspurger
Mitch Gootnick, AIG
Michele Montgomery, AJG
NEFEC 26th Annual Risk Management Conference
November 6, 2014
1
Agenda

 Policy Basics
 Current Employment Practices Issues
 Services Available from AIG
 Current Trends under the School Leaders Risk
Protector Policy
2
Policy Basics

 School Leaders Risk Protector
 Professional Liability and Management Liability for
Schools
 Provides Damages/Defense Costs for Wrongful Acts
 Wrongful Act
 Breach of Duty, Neglect, Error, Misstatement, Omission,
Employment Practices Violation, Non-Employment
Discrimination
 Defense counsel assigned/approved by AIG
3
Policy Basics

 Employment Practices Violations






Wrongful Termination
Harassment including Sexual Harassment
Discrimination
Retaliation
Wrongful failure to employ/promote
Etc.
4
Policy Basics

 Limits/Deductible
 PolicyAggregate $20M
 District Aggregate $2M/$5M Flagler
 $5,000 Deductible
 Claim Expenses are in addition to the limit of liability
 Key Sublimits
 Sexual Misconduct $500,000/$6.5M Aggregate
 IEP Hearing (Expenses) $50,000 per district/$650,000
Aggregate
 Breach of Contract (Expenses) $100,000 per district
 Crisis Management $25,000 Each Event/$150,000 Aggregate
5
Policy Basics

 Claim:
 A written or oral demand for money, services, etc.
 An administrative Proceeding
 A Suit
 Suit
 A civil proceeding for monetary, non-monetary or
injunctive relief commenced by the service of a
complaint
 An arbitration proceeding in which damages are
alleged
 An EEOC proceeding
 An IEP hearing
6
Policy Basics

 Coverage Form:
 Claims Made and Reported
 Notice of claim required during the policy period or
any applicable extended reporting period
 Includes notice of circumstances which may
reasonably expected to give rise to a claim
 Key is Timely Reporting
7
Current Employment Practice Issues

 #1 source remains: confusion/refusal to
accept that Annual Contract means one year,
period.
 “Neither party owes any further contractual
obligation to the other after June 30th…”
 REALLY!!
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Entrenched?? Entitled??
Egocentric??

I wasn’t offered another annual contract. It
can’t be MY fault…
…it’s:
Discrimination?
Retaliation?
Adverse
employment
action?
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Discrimination

Age?
Race?
Gender?
Disability?
Ethnicity?
10
Retaliation

Adverse employment action after engaging in
protected activity:
 Based on a charge of discrimination filed?
 Based on assisting someone else in their charge of
discrimination filed?
 Based on a “whistle” being blown?
11
Adverse Employment Action

 Termination during contract?
 Decrease in pay?
 Transfer?
Not being offered another annual contract is NOT an adverse
employment action.
Without an adverse employment action, you have no
employment-based cause of action.
12
These cases are expensive

Respond to Charge of Discrimination
Some Sue
Some Don’t Sue
13
Lawsuits:
Federal Court vs State Court
 Jury trial allowed

 All cases have mandatory mediation (and a mandate to
participate in “good faith”)
 Employee entitled to payment of employee’s attorney’s fees
and costs if employee wins (even a nominal amount of
money)
 Employer only entitled to payment of employer’s attorney’s
fees and costs from employee if employer wins AND
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employee’s case determined to be “frivolous”
What about a teacher who “complains” to
Administration by issuing “referrals” to students who
make racist remarks to the teacher?

Was the
Teacher’s
probationary
teacher
contract
retaliated
terminated within
against?
the probationary
period
15
Retaliation:

Employee must engage in protected activity;
Employer must subject employee to an
adverse employment action; [What does the
contract say?]
There is a causal link between the protected
activity occurring and the adverse
employment action occurring.
16

Writing up students for making racist
remarks is not “protected” activity
Students are not employees
The probationary contract is . . . wait
for it . . .a probationary contract!!
17
The Florida Legislature Wants:

The School Boards and the Superintendents to run
school districts, not employees; not even district office
employees.
The Florida Legislature
Passed laws about contracts
Passed laws about Superintendents making all
recommendations to the School Boards
Expects accountability and performance
18
Sexual harassment of a female special
education teacher by male students.

 In order for School Board to be liable, School Board must
have actual or constructive knowledge of the harassment
and fail to take remedial action:
 Parent/teacher conference
 IEP meetings
 Reprimands
 Referrals to counselor
 Involve campus police officer
 In-school suspension
 Out-of-school suspension
19
What are elements of hostile work
environment sexual harassment?

Employee belongs to protected group
Employee was subjected to unwelcome sexual
harassment
The harassment was based upon sex
The harassment affected a term, condition, or
privilege of employment
The employer knew or should have known
about the sexual harassment and failed to take
prompt remedial action
20
Title IX Cases

 Enforced by the U.S. Department of Education Office for
Civil Rights (Not the Equal Employment Opportunity
Commission)
 Teacher on Student Sexual Harassment
 Title IX
 Student on Student Sexual Harassment
 Title IX
 Student on Teacher Sexual Harassment
 Title VII
21
Title IX Can Occur Off Campus
Cyber-bullying

Schools can quash student speech (1st
Amendment Rights)
 When it is materially or substantially disruptive
or when it violates the rights of other students
 When it is lewd, offensive and contrary to the
school’s mission, even when it is not disruptive
22
Services Offered by AIG

 Controlling employment practices liability exposures
while keeping pace with employment litigation trends
and regulatory changes is a major challenge for all
employers. AIG gives its employment practices liability
(EPL) policyholders a unique advantage with EPL Pak
Premier, industry-leading loss prevention offerings. The
EPL Pak Premier is a combination of training, loss control
and risk management tools designed to help our clients
manage employment practices risks. The EPL Pak
Premier's resources are exclusive to AIG, and provide our
EPL policyholders with access to expertise and materials
from two of the nation's foremost employment and labor
law firms, Littler Mendelson, P.C. and Jackson Lewis LLP.
23
EPL PAK Premier Risk
Management Tools

Provides access to expertise from two of the nation’s best employment
law firms (Jackson Lewis and Littler Mendelson)
Access to Jackson Lewis general employment advice hotline: (866) 6140744
Jackson Lewis provides a one hour free legal consultation on human
resources and employment law issues.
Access to www.eplriskmanager.com. Materials include:
 Sample handbook and policies demonstrating best employment
practices
 Workforce Guides including step-by-step guides to prevent
harassment and lessen potential liability
 Access to the Jackson Lewis e-newsletter highlighting significant
employment trends and pre-termination checklists to identify potential
issues.
Access to Jackson Lewis self audit and pre-termination checklists
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EPLRISKMANAGER.COM

 Human Resources Form Library










Sample Employee Handbooks
Employment Law Email Alerts
Employment Law Policies
Hire & Fire Manual
Employment Law Reference Manuals (5000+ pages)
50 State Analysis of Key Employment Laws
Preventing Unlawful Harassment Guide
Preventing Employment Class Actions Manual
Discounts on Employment Law Training
As an AIG policyholder, you also receive ten free seats to
Littler Mendelson's monthly webinar series on preventing
harassment in the workplace and discounts on over 40
employment law training courses.
25
EPLRISKMANAGER.COM

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EPLRISKMANAGER.COM

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Employment Law Resources
Library

 This library contains a vast collection of state and
federal employment law reference manuals
designed specifically for human resources
professionals, senior management, and corporate
counsel. Drafted by the attorneys of Littler
Mendelson, these manuals provide both
practical information and a detailed legal
analysis to help guide employers through the
complex maze of employment and labor laws.
28
Employment Discrimination
Law In Florida Handbook

29
Statutory Rights Under
Florida Law Handbook

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Other Reference Materials
Available

31
Human Resources Form
Library

 This library includes a compendium of over 35
forms, checklists and decision-making guidelines
designed to be used by managers and human
resource professionals alike. The HR Form Library
includes useful tools to manage your workforce,
including an employment hiring checklist, offer
letter, performance evaluation forms, employee
warning form, termination checklist and more.
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Human Resources Form Library

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Employment Law Training
Center

 Harassment prevention training is one of the most
important compliance steps an employer can take to
prevent and defend against employment-related
litigation. Many States now require harassment
prevention training for managers and supervisors. With
today's technologies, and the vast resources of Littler
Mendelson, employers now have a wide variety of
training options to meet their particular training
needs. Effective, entertaining and efficient training can be
provided live and in-person, via webinars, or
seminars. The training options are provided as
significantly discounted rates for AIG insureds
34
Employment Law
Training Center

35
Employee Handbooks &
Supplemental State Law Information
Library

 A properly-drafted and thorough employee
handbook can be an invaluable tool for managing
your workforce and preventing employment-related
liabilities. Here you will find dozens of employee
handbook policies, model handbook, 50 summaries
of key state laws, and valuable employment law
guides and strategy tips for developing and
implementing a handbook for your company.
36
Main contacts for
EPLRISKMANAGER.COM

37
Other Services Available
under the EPL Pak Premier
Provided by Jackson Lewis:

 Legal Consultation: A one-hour legal consultation on human
resources and employment law issues, such as how specific
laws
impact personnel decisions and potential exposure to liability.
 Liability Updates: Access to the Jackson Lewis e-Newsletter
and
e-updates spotlighting important workplace law news and
trends.
Alerts on significant legislative actions, judicial decisions and
other changes with potential impact on our insured's business
 Checklists: Self-audit and pre-termination checklists to help
insureds identify vulnerabilities and safely navigate risky
terrain.
38
Main contacts for services
offered by Jackson Lewis

39
Other Services Available
under the EPL Pak Premier

 The EPL Pak Premier also includes Alternative Employment
Dispute Resolution Programs from EDR Systems at preferred
rates. EDR Systems will assist to resolve employee disputes
internally and prevent time and money in litigation. The
professionals at EDR Systems have more than 50 years of
combined experience in human resource management, strategic
planning, change management, and employee relations. They
support a wide variety of businesses of all sizes, from national,
multi-unit retail operations, to single-facility manufacturers, to
professional firms
 The EPL Pak Premier gives you access to expertise and
resources from two of the nation's foremost employment and
labor law firms, Littler Mendelson, P.C. and Jackson Lewis LLP.
40
Current Trends under the School
Leaders Risk Protector Policy

 Your policy offers many outstanding features,
including coverage for claims arising from
Employment Practices Violations.
 Across the country, retaliation claims are the most
common types of charges filed with the EEOC.
 In an effort to mitigate your damages, it is important
to take all appropriate steps once an employee makes
a complaint of harassment. The best defense against
avoiding unwarranted EEOC charges and litigation
is to keep your staff well aware of the protections
afforded to them by the District.
41
Investigation Phase

 Investigate whenever the Company policy is implicated.
 Take every complaint seriously, no matter how trivial it may appear.
 Investigate whenever you hear trigger words:
i.e., bother, annoy, hostile, unsafe, intimidate, unfairly treated,
uncomfortable, “it didn’t seem right.”
 Investigate even if the person reporting the incident asks you not to.
 Investigations are important because they resolve employee
disputes/workplace issues before an outside entity becomes involved.
 Investigations also provide the Company with effective defense in litigation/
arbitration.
 The standard is whether the employer conducted a reasonable, good faith
investigation.
 Accurate records of information received from complaining employee,
witnesses and alleged wrongdoer.
 It encourages an open workplace where employees are comfortable raising
issues.
42
Core EEOC Principles

 Everyone is protected from adverse employment
actions based upon protected characteristics.
 Similarly, you are prohibited from engaging in
discrimination against another person based upon
his/her protected characteristics.
 The protected characteristics are constantly
expanding with different interpretations of the law.
43
Common Allegations of
Discrimination

• Harassment is one type of discrimination
• Harassment cuts across all of the protected classes.
• Gender and race-based harassment has become more
difficult to manage because of cultural and societal
influences.
•
•
QUID PRO QUO” (“this for that”)- Unwanted sexual advances, requests for
sexual favors, inference that submission to or rejection of advances or requests
will affect an employee’s employment, or terms or conditions of employment.
Unwelcome Conduct- Based on gender or directed toward an individual due to
gender (or other protected characteristics), sexual content/activity not required,
Severe or pervasive. Usually more than an isolated incident, unless a single
egregious act, Offensive to a reasonable person, affects the work environment
(extremely vulgar and offensive sexually-related jokes, stories, or epithets,
Abusive language, depictions of sexually-explicit behavior, or incidents of
indecent exposure by co-workers).
44
Common Allegations of
Discrimination (cont.)

• The employer Must provide reasonable
accommodations to known physical or mental
limitations of qualified applicants and employees
unless the accommodation would impose an undue
hardship on our operation.
•
•
Reasonable Accommodation– Any change in a job, the work environment,
or the way things are customarily done that allow a qualified individual
with a disability to enjoy equal employment opportunities: Employee still
is required to perform the essential functions of the job.
Some potential Reasonable Accommodations-- Part-time or modified work
schedules, reassignment to a vacant position, job restructuring,
modification of equipment or devices, adjustment or modification of
examinations, work materials, or policies, work-at-home, making existing
facilities accessible.
45
Common Allegations of
Discrimination (cont.)

• Retaliation claims: employees say they were
subject to adverse action after they
complained of misconduct.
•
•
•
Easier case for an employee to prove than the underlying claim of
discrimination or harassment.
Retaliation (as well as failure to investigate complaints of discrimination)
undermine an organization’s credibility and commitment to a harassment-free
workplace.
Managers have a difficult time understanding the “stand alone” nature of these
retaliation claims, and are shocked to learn that an unsuccessful discrimination
complaint can still support a successful retaliation claim. Particularly when
managers feel that discrimination claims are not valid, they can engage in high
risk behaviors (like expressing anger over the claims) that create serious legal
liability for their employers.
46
Current Trends under the School
Leaders Risk Protector Policy

 Your policy also offers coverage for claims arising from an IEP Due Process
Hearing request.
 IEP means an individual education plan to address the special educational
needs of a student with disabilities that is developed by the: (1) School
Entity; and (2) parent(s) or guardian(s) of a student.
 IEP Hearing means a due process hearing: (1) conducted by an impartial
officer; (2)arranged at the request of a parent(s) or guardian(s); and (3)
regarding an IEP.
• These matters originate when parents disagree with the educational plan
put into place for their child.
• Often an IEP due process hearing request will start as a demand for the
child’s public records on file with the District. It is encouraged that the
Insured report these demands to AIG as they often mature into an IEP due
process hearing request.
47
Employment Practices …
should’ve, could’ve , would’ve

 Questions?
Thank you!
48