Skiing The Slippery Slope Of Employment Practices Liability In The Nonprofit Sector

If unsure about the nature and extent of your Employment Practices Liability coverage, by all means consult with your insurance agent or broker.|

Chuck Hewitt

June 20, 2013

One of your employees has been out on disability with a workers' compensation injury and you have been getting great advice and service from your workers' compensation carrier regarding managing the employee while out on leave. Ultimately, you are advised that it has been determined in the workers' compensation case that the employee has reached maximum medical improvement (known as permanent and stationary in some states) and cannot return to her job due to a permanent disability. With regret, you terminate the employee since she is now receiving workers' compensation vocational rehabilitation benefits and you have heard that workers' compensation is the exclusive legal remedy for employees suffering workplace injuries. Not so fast! If an employer has 15 or more employees, it is subject to the Americans with Disabilities Act (ADA) and/or a state disability accommodation law with a different threshold for applicability. In this instance, even though you acted appropriately in terms of not discriminating based on a work-related injury in violation of workers' compensation law, you have violated the Americans with Disabilities Act for failing to engage in the interactive process to determine if there is any reasonable accommodation that would have allowed the employee to return to work for you — perhaps in a different job. Failing to engage in the interactive process prior to terminating a disabled employee is a violation of the Americans with Disabilities Act and would subject you to legal liability resulting from the termination. Okay, so maybe you knew about that issue. But what about the other employment law moguls out there just waiting for you? Let's explore some of the common — and maybe not so common — employment practices law issues that face nonprofits, how to guard against mistakes, what it can cost if you do err, and how insurance fits into the picture. Timing Really Is Everything Culled from the claims files of the Nonprofits' Insurance Alliance of California (NIAC) and the Alliance of Nonprofits for Insurance (ANI), member companies in the Nonprofits Insurance Alliance Group (NIA Group) that insures over 11,500 nonprofits around the country, here are just a few examples of seemingly appropriate terminations by 501(c)(3) nonprofits that failed to withstand scrutiny because of their timing.

A couple of disruptive employees whose paychecks had been withheld for failure to have reports done on time filed a complaint about not being paid and were then terminated. (Two strikes on this one!) First, most states prohibit withholding paychecks just for poor performance. Second, terminating these two employees after they complained resulted in valid claims under the state's "whistleblower" laws.
A poorly performing employee complained of sexual harassment. A thorough investigation concluded no harassment had taken place. The employee was then terminated on performance grounds alone. Problem — no contemporaneous documentation of the alleged poor performance existed, so it appeared to the state administrative agency that the termination was a result of the harassment allegation because it followed closely behind the report of it.
A long-term employee of an elder daycare facility, who was a "mandatory reporter" under state law, filed a report with the state about inadequate staffing at the facility when an elderly client was left unattended and was found wandering around in traffic. She was terminated for not following "internal reporting procedures" (in this case a warning was the appropriate remedy, not immediate termination).

So What's An Employer To Do? Let's start with the exposures under Employment Practices Liability (EPL) that give rise to liability claims. Both federal — and most state — laws proscribe the most commonly known unfair employment practices of wrongful termination, sexual harassment, discrimination and ADA violations. Embedded in each of those categories, however, are some lesser known prohibitions and strict liabilities. By now most everyone knows that in most jurisdictions you can't terminate someone based on age, race, gender, or sexual preference. But what if a poor performing employee is the only one working for your nonprofit that's in a protected category? Termination here may have the appearance of discrimination sufficient to subject you to administrative or civil exposure. You know that sexual harassment is illegal and that procedures need to be in place to train supervisory and management personnel about its ins and outs. But what if you're in a state that imposes strict liability on an employer, even if the employer didn't know the harassment was occurring? Or what about a delivery person that's been making inappropriate suggestions to your receptionist, or if the delivery person believes that one of your employees has been harassing him or her? That can get you into as much trouble as the typical case. So, what to do? Defense of Employment Practices Liability claims starts with your agency having documented procedures in place that you and your counsel can use to demonstrate to an administrative agency or a court that you intended to be — and were — in compliance. This is best accomplished from the beginning with a robust personnel handbook that includes policy statements and procedures around at least 12 key subjects.

Twelve Components of a Model Personnel Handbook Following are twelve components that we recommend all personnel handbooks contain:
Introductory Statements

Nondiscrimination and Sexual Harassment

Organization and Structure

Training and Orientation

Employee Classifications and Categories

Employment Policies, Including Wage and Hour Regulations

Benefits Disclaimer

Leaves of Absence and Time Off

Standards of Performance

Workplace Violence Prevention and Safety

Search and Inspection

Drug-Free Workplace

At a minimum, the handbook should include statements regarding at-will employment, probationary, introductory or benefit waiting periods, and examples of disciplinary offenses (always prefaced with "including, but not limited to" language). Always have employees sign a written acknowledgment that they have read and understand the policies, or you might as well not have created them in the first place. Next comes training and adherence. Regardless of size, every nonprofit needs to train its management personnel about the employment laws relevant to their jurisdiction and the policies and procedures the agency has adopted. Include here any state mandates such as sexual harassment training for supervisory personnel. Then, walk the talk! Follow those policies and procedures diligently — every day. Oh, and did you remember to include your board members in the training? They are at risk as much as the Executive Director because they are ultimately responsible for the agency's overall management.

The Old "Ounce Of Prevention" The last, and most overlooked, step in Employment Practices Liability claim prevention is checking in with experienced employment counsel before taking a significant personnel action. A poorly drafted employment offer letter can bind you for a lot more than you thought. So can the improperly announced new personnel policy or procedure — even if it's meant to be a "positive" for employees. More than anything else, however, is every Employment Practices Liability defense lawyer's wish that you consult counsel before termination. There would be obvious questions about clear documentation of performance issues, protected classes of employees, and compliance with your own policies and procedures, but some circumstances might require some "drill down" inquiry. Suppose a health issue, disclosed or not, is involved. Is the employee perhaps entitled to an ADA accommodation? What about Family and Medical Leave Act entitlement, or workers' compensation benefits? Always, always, check with counsel experienced in employment law. Some are available on a pro bono basis — check with your local bar association. A number of Directors and Officers and Employment Practices Liability insurance carriers provide this service to their policyholders, although sometimes on a limited basis. So ask them if they do. If they don't, ask them for a referral. At ANI-RRG and NIAC, we feel so strongly about the importance of our members getting good advice before they take an important employment action that we have three experienced labor law attorneys dedicated solely to providing preventative advice on this subject to our member-insureds. And The New "Pound of Flesh" If you haven't heard or read about it, employment practices law is one of the latest and greatest fertile fields for aggressive plaintiff's attorneys. It matters not that you are a charitable nonprofit (particularly if you have good insurance limits). Six-figure jury verdicts have become more frequent, particularly in metropolitan areas where the majority of the nonprofit sector does its work. Need convincing? Think about this data from ten recent years of our closed claim files:

One out of every 100 nonprofits (regardless of size) will have an EPL claim this year
97% of all claims against directors' and officers' policies are in the EPL category
The average cost to defend when a claim has some merit is $29,000 and the average loss on those claims is $44,000 — a combined average of $73,000
40% of EPL claims have some merit and when they do, one in ten will cost more than $100,000
When claims do not have merit, the average cost to defend is only $5,000, thanks to early intervention by our experienced employment defense counsel
The two largest claims cost $1 million and $400,000 respectively

Did You Say Something About Insurance? Unless you have tens or even hundreds of thousands of dollars just sitting around, you probably want to think about how your agency can protect itself in this vulnerable area and one other that directors and officers should be concerned about. When Employment Practices Liability claims first came into vogue years ago, the insurance industry's "knee jerk" reaction was to find a way to exclude the exposure. Smarter heads prevailed, fortunately, so that today EPL coverage is readily available. But like many things, it comes in different shapes and sizes, and not always where you think it is. Let's talk first about Employment Practices Liability as a stand-alone coverage. It's available and commonly protects the nonprofit from damages claimed as a result of an adverse employment action. The defense component provides for payment of attorney fees and costs, and the indemnification component provides for payment of actual damages, if any. There are exclusions as discussed below. It is more common, however, to find EPL coverage as either an attachment to, or embedded in, the nonprofit's Directors and Officers (D&O) coverage. The components are generally the same as described above. Key issues to consider are detailed below, but look out for some tricky provisions such as the one that requires your consent before the carrier settles a claim, but makes you responsible for all the ongoing legal expenses if you don't accept the carrier's recommendation. Typical exclusions include fines, penalties and sanctions (these are uninsurable risks), back wages, multiplied damages and plaintiff's attorney's fees. Wage and hour claims are one of the biggest uncovered liabilities that a nonprofit faces. Properly classifying an employee as exempt from the overtime requirements of the Fair Standards Labor Act (or similar state laws) can be tricky business and sometimes requires extra sensory powers of hindsight. To be properly classified as exempt, an employee must make a threshold salary as defined by federal and state law and pass the duties test of either the professional, executive or administrative exemptions. While most insurance policies do not cover payment of back wages and penalties, a few at least provide some defense costs to cover wage and hour claims. So what are the key EPL components of a good D&O policy? At a minimum, expect the following: Adequate policy limits

$1 million is generally adequate for small to mid-size nonprofits. Larger agencies should consider higher limits or an umbrella policy.

Broad definition of who is an insured

Is the nonprofit agency itself insured in addition to its directors and officers?
What about prior directors and officers?
Committee members?
Employees and volunteers? (Volunteers don't have all the federal or state immunities you may think.)

Broad coverage for employment practices liability

Either by endorsement or imbedded in the D&O policy itself

Duty to defend

Does it extend to administrative proceedings (where most EPL claims start) or just to suits in civil courts?

Advancing of defense costs

The carrier should pay for defense costs as incurred, not after the nonprofit has paid for them and is seeking reimbursement

Anything Else? Make sure that you understand your policy before you need to use it. For example, be sure that you understand when you need to report facts that may result in employment practices liability. For example, you may decide not to report to the insurer an employee grievance filed with your Human Resources Department pertaining to the employee's termination, perhaps thinking that a legal claim may not develop from it. Unbeknownst to you, your policy may require you to report potential claims, including grievances filed with your HR Department. By the time the terminated employee files a legal complaint with the district court, the reporting period has passed and your insurer may deny coverage. Don't be disappointed if your insurance carrier insists on using defense counsel of its own choosing. It has the right to do so and generally has developed over time a panel of attorneys experienced in employment law defense who understand the nonprofit sector better than most. While not directly EPL-related, make sure your Directors & Officers policy also protects you for fiduciary liability claims such as failure to properly account for grant funds. If unsure about the nature and extent of your Employment Practices Liability coverage, by all means consult with your insurance agent or broker. They are usually paid commissions when they place your coverage, and providing appropriate advice is part of what they are paid for — and a service you have a right to expect. Happy skiing!