Over the past decade or so, more and more employers have purchased employment practices liability insurance (EPLI) through their agents. In general, EPLI provides employers with coverage, usually for both defense costs and damages potentially awarded in cases involving claims of discrimination or harassment by employees, overtime, and other allegedly unfair employment practices. At first glance, EPLI coverage seems to be a no-brainer: the employer pays a premium and gains the peace of mind from knowing that if a lawsuit is commenced, insurance will generally pick up the tab, subject to exhaustion of some type of deductible.
But employers should not be too hasty to sign the dotted line on an EPLI policy. Often, such policies allow the insurer to dictate the lawyer who will represent the employer in any litigation. And in most cases, that lawyer will be from a firm which is listed as one of the insurer’s “panel counsel,” a group of firms that have contracted with the insurer to keep their rates down in return for referrals of EPLI cases. That, in and of itself, can create a conflict of interest. Any lawyer an employer hires to defend it should solely look out for the interests of the employer. But with panel counsel, the lawyer often has the competing concern to maintain a solid relationship with the insurer which, after all, is feeding cases to the lawyer. That can create situations where the lawyer is not necessarily doing what is solely in the best interests of the employer. For example, an employer may wish to exonerate itself and take a case to trial. The insurer, of course, may prefer to avoid that expense and push for a quick settlement. This can present a conflict for the lawyer, who was brought into the case by the insurer and almost certainly hopes to continue to get referrals of cases from the insurer in the future.
In a real-world example, in the summer of 2019, an employer sued its EPLI insurer and its panel-provided lawyer in the Los Angeles Superior Court for bad faith and legal malpractice. The employer, who had been sued by a former employee on a multitude of claims, alleged the lawyer consistently treated the insurer as the true client, and defended the case in a manner which directed liability to the claims with little or no insurance coverage and away from those for which there was strong EPLI coverage. In other words, the lawsuit alleged the lawyer handled the case with an eye toward benefitting the insurer, as opposed to the employer, who should be the true client.
And potential pitfalls with EPLI coverage are not limited to the possible conflicts of interest with panel counsel. Many EPLI policies limit the type of claims they cover. For example, they often exclude contractual claims for wages, or payment of damages for overtime. In situations where an employee has asserted a myriad of claims against an employer, as is often the case, it is typical for only some of the claims to be covered by insurance. In those situations, the EPLI insurer may agree to pay for an employer’s defense, but only to the point where the claims covered by insurance remain in the case. If the insured claims are successfully dismissed, an employer may have to find new counsel at that point to continue to defend the uninsured claims. The employer is also using an insurance selected attorney to represent them in a claim which is not covered and for which they may not have as much interest as they do in a covered claim. Many employers decide to hire their own counsel to represent them in uncovered claims to protect them from a disinterested insurance attorney.
In the end, EPLI coverage can certainly be a smart and integral part of employers’ risk mitigation strategies. But do not sign such policies blindly. Consider adding clauses which allow the employer to choose its own lawyer and give the employer sole discretion on when to settle and determine strategy for defending the case, and other such clauses.