EPLI: Wage and Hour

In a prior blog post I mentioned a few items that could be helpful for you to consider when placing employment practices liability insurance. Here's the next entry, this one on the topic of wage and hour defense coverage. You should be reviewing this for every client you work with...

Wage and Hour violations has been one of the hot buttons for many plaintiff law firms over the past few years. The concept usually goes something like this; attorneys advertise seeking individuals who were employed and feel like they may not have been paid adequately (translation - someone who is disgruntled because they were fired, passed over for a promotion, etc). The most valuable "target" for a law firm is a group of employees that were paid on an hourly basis and that worked a considerable amount of overtime over a long period. Frequently the employer does not keep detailed records of hours worked, or if they do keep those records, they discard them too soon, they can't locate them, they're damaged in some way, etc.

If the plaintiff firm feels moved to bring an action against the employer, they assert that the employee(s) were not paid a sufficient wage for the time worked. Damages could include back pay, plus interest, plus fines, and penalties. The burden is on the employer, not the employee, to prove the pay provided to the employee was accurate. This can be extremely stressful to a business owner, as it will consume considerable time and energy to produce the necessary records - if they exist at all - to prove their position. The stress is compounded if they have an EPL policy that doesn't include defense coverage for this situation or they have some coverage but not the maximum they could have purchased. If the latter case arises (not every policy provides the coverage) the agent of record can count on some stress of their own, and likely a claim against their own E&O policy.

Even if the employer has all of the records to confirm how they paid the employee(s), they may still be liable if they don't have their staff properly classified. Many employers believe that just because a person is called a "manager" or has “additional” responsibilities, that makes it OK to pay that person on a salaried vs hourly basis. This is not correct and could end up costing the employer (your client) in a big way. (Here's another plug for using the risk management tools available on many EPL policies, or at the very least making sure the employer has their staff properly classified and keeps detailed records of hours worked).

Ok, so you're convinced that this is a valuable additional coverage - how does it work?

1. The "Coverage" under most policies is added by endorsement. If a policy has a very recent revision date, it could be included in the wording. When in doubt, ask the underwriter.

2. The "Coverage" is usually defense only - and if so, it will not pay on behalf of the insured for damages, including back pay, fines and penalties.

3. The "Coverage" is most commonly provided as a sub-limit, not the full policy limit. An example would be a policy limit of $1 MILL may only provide $100,000 of wage and hour defense coverage. Whether it's a part of the limit of liability, or in addition to the limit differs by carrier.

4. Defense applies to wage and hour laws that could be local, state or federal, and could apply to foreign laws, depending on the carrier. If you have a client that has operations outside the US, you need to check that provision carefully.

One of the most common areas of law that is involved is the Fair Labor Standards Act. If you are not familiar with this at all, a good place to start is the website for the US Department of Labor; Wage and Hour Division http://www.dol.gov/whd/flsa/

This is by no means the only resource to use, so google the terms and make some phone calls before you speak with your client.

There's much more to this issue, but I hope this gives you a basic awareness and gets you thinking about existing clients or prospects you may be working with now, and how to approach them about this very important issue.