Why Retaliation Claims are the Game Changer in EPLI

The sports section is probably the last place you would expect to read about EPLI. Yet during the 2013 NFL season, the Miami Dolphins team made headlines for its part in a major retaliation litigation case.

At the center of the controversy was Richie Incognito: a journeyman player who was suspended by the team for allegedly bullying former teammate Jonathan Martin. In response, Incognito filed a non-injury grievance against the Dolphins. Some are anticipating litigation from Martin as well. The prevailing thought is Martin could claim his career was ended due to retaliation by the team for his complaints.

This case is only one of many workplace-related retaliation claims filed in 2013. In fact, since 2010 retaliation claims have surpassed discrimination litigation. There are several reasons for this trend:

  • Retaliation can be technically asserted under all anti-discrimination laws.
  • The standards of litigation have become so soft, almost any action taken against an employee could be interpreted as retaliation.

According to David Derigiotis, Corporate Vice-President at Burns & Wilcox, “It doesn’t matter whether the claims have any merit. The amount of money that’s spent on attorney’s fees and defense, even for frivolous claims, can really hurt a company’s financial well-being if not properly insured.”

Given the litigious nature of today’s workplace, now is the time for brokers and agents to promote EPLI products related to retaliation. Since CGL policies either exclude or provide a bare minimum of coverage, EPLI products are a good way to fill gaps. “It’s the perfect cross-selling opportunity to expand their business with each commercial client they work with,” said Derigiotis. “EPLI helps cover workplace-related exposures that should never be overlooked, especially in this day and age.”

EPLI tends to attract a lot of attention from larger companies because they have risk managers focused on all matters of insurance. This should not, however, dissuade brokers and agents from pursuing growing companies that may be unaware of EPLI products available to them. One might even argue smaller businesses need coverage more than larger ones because with out-of-pocket legal costs, any litigation could be financially devastating.

The myth that EPLI is expensive is just that: a myth. Derigiotis points out that Burns & Wilcox can place coverage “for under $1,000 on an annual basis. Think about it. For what an attorney charges you for two hours of work, you can have an annual policy. These policies also provide additional resources such as an EPLI helpline which can be utilized for human resources and employment-related questions.”

Whether it is for an NFL team, large corporation or local business, all brokers and agents should talk about EPLI products to their clients – especially in regards to retaliation claims. Do not fumble away this opportunity to tap into an expanding and lucrative market.

Questions to ask your client:

  • Are you aware of the employment related risks your business is facing?
  • Do you know the costs associated with defending a meritless claim?
  • How could this impact your bottom line?
  • Do you have a full service HR department that can lawfully address all employee related concerns and issues?
  • Are you aware of the most common lawsuits brought by employees against their employers?
  • Are you aware of the broad range of coverage and resources provided by an employment practices insurance policy?

Asking these questions can lead the discussion down a path towards a more complete coverage solution.