Employment-Practices-Liability-Trends-In-2021

Employment Practices Liability Trends For 2021

Estimated reading time: 6 minutes

Insurance 101 - Employment Practices Liability - Trends in 2021

Employment Practices Liability Trends For 2021

Small Business Owners face a myriad of challenges on a daily basis.  One of the biggest challenges is managing employees.  Regardless of how well a business owner manages the relationships with its employees, countless risks remain.

While employment practices liability concerns are present in every business, the risks have never been greater than they are today.  Now, more than ever, it is crucial for businesses to have EPLI Coverage.

While having EPLI is important, business owners need to stay up to date on the potential risks facing their business.  The year 2020 brought to the forefront a number of issues and movements that are driving Employment Practices Liability Trends that could devastate your business.  

In this article, we will review some of the main EPL Trends that you need to watch in 2021 

Employment Practices Liability & The COVID-19 Pandemic

The COVID-19 Pandemic has changed the way businesses actually “do business”.  Businesses have been forced to make significant shifts in how their employees work & interact with other employees.  Whether the business has moved employees to work remotely, had to adjust office layouts for safety and social distancing, or had to furlough or layoff employees, the workplace looks much different than it once did.  In addition, employers are now facing pandemic-related Employment Practices claims like:

  • Allegations of unsafe working conditions that contributed to employees getting sick and/or dying from COVID-19
  • Allegations related employee leave (making staff take leave, not allowing employees to take leave due to COVID, or retaliating against workers who take COVID leave)
  • Allegations of discrimination related to denying remote work options
  • Allegations of retalition after an employee complains of unsafe working conditions
  • Allegations of layoffs or employee furlough without proper notices to the employees
  • Allegations of discrimination related to those employees who have been layed off or furloughed

Given these trends created by COVID-19, business owners should review & document changes within the organization and make sure they fully comply with federal, state, and local laws.



The Impact Of Social Movements On EPL

There have been a number of social justice movements over the past few years.  Movements like the #MeToo and Black Lives Matter have led to an increase in Employment Practices Claims.

The #MeToo Movement

The #MeToo Movement was founded in 2006 as an anti-sexual harassment campaign.  The movement starting gaining momentum in 2017 due to the amount of attention from social media and other online platforms.

According to the U.S. Equal Employment Opportunity Commission (EEOC), there has been a 50% rise in sexual harassment lawsuits in recent years.  The uptick can largely be attributed to the movement.

The movement stresses the importance of implementing sexual harassment prevention measures in the workplace as well as increased reporting methods and protocols for effective response.

The Black Lives Matter Movement (BLM)

The Black Lives Matter Movement (also known as BLM) was founded in 2013 as a recial justice campaign.  As the nationwide racial protests heightened in 2020, BLM has gained momentum as a movement.

It is vital that businesses, both large and small, take steps to promote workplace diversity, inclusion, and acceptance.  In addition, employers must implement policies and procedures to handle accusations and reports of workplace racism.



LGBTQ+ Protections & Employment Practices Liability

The U.S. Supreme confirmed in 2020 that Title VII of the Civil Rights Act of 1964 protects gay and transgender employees from workplace harassment based on sexual orientation, gender identity, and gender expression.

Although this confirmation is relatively new, the decision stresses the need for small businesses to ensure LGBtQ+ employees are treated fairly and feel supported in the workplace.

EPL Impacts Of Age Discrimination

The Age Discrimination In Employment Act (ADEA) prohibits discrimination againsts employees or prospective employees that are 40 years old or older.

Employees age 55 and over are expected to make up almost 25% of the labor force by 2024

Employees age 55 and over are expected to make up almost 25% of the labor force by 2024.  This figure is almost double the rate of 2001.  As the workforce becomes older, it is crucial that employers understand what age discrimination looks like and take steps to minimize its existence.

While most employers know and understand that age discrimination is wrong, a recent study by Hiscox Insurance found that 21% of employees in the U.S. have experienced Age Discrimination in the workplace.  In addition to the increased likelihood of an EPL Claim, a workplace environment like this can tarnish a business’ reputation as well as lead to less productive employees.

Issues With Wage, Leave, And Salary History

Wage & hour laws garner much attention in the political arena.  Regardless of your personal opinions on the matter, it is crucial that your business review legislation specific to your state.  Issues surrounding minimum wage, hourly or salaried employee classifications, overtime pay, sick leave, and the like could all lead to increased Employment Practices claims if you are not prepared.

Salary History for potential employees has become another hot button issue.  Some states have passed legislation that prohibits employers from requesting or requiring salary history as part of the job application process.  As with most Human Resourcing Legal Issues, it is always best to speak with a legal professional that specializes in Human Resources related matters.



Marijuana Legalization & EPL

Medical marijuana became is legal in 36 States and recreational marijuana in legal in 15 states following the 2020 Elections.  Whether you agree or disagree, the fact is that as legalization grows across the country, your business must state on top of your state’s specific laws and change your workplace policies to stay in compliance.

Drug Testing has been commonplace with many employers across the United States.  However, some states now restrict an employer’s ability to perform this testing for marijuana.  Additionally, there have been a number of employment related cases with regard to the use of marijuana where courts have ruled for the employee.  

Recent cases include: 

  • Disabled employee that sued the business for workplace discrimination due to medical marijuana usage.
  • Employee sued for wrongful termination due to a positive drug test for marijuana

Employers should look at their policies and procedures regarding drug testing.  The business could potentially open itself up to Employment Practices Lawsuits if the procedures are not in accordance with state and local laws.

StateLegal StatusMedicinalDecriminalized
AlabamaFully IllegalNoNo
AlaskaFully LegalYesYes
ArizonaFully Legal*YesYes*
ArkansasMixedYesNo
CaliforniaFully LegalYesYes
ColoradoFully LegalYesYes
ConnecticutMixedYesYes
DelawareMixedYesYes
District of ColumbiaFully LegalYesYes
FloridaMixedYesNo
GeorgiaMixedCBD Oil OnlyNo
HawaiiMixedYesYes
IdahoFully IllegalNoNo
IllinoisFully LegalYesYes
IndianaMixedCBD Oil OnlyNo
IowaMixedCBD Oil OnlyNo
KansasFully IllegalNoNo
KentuckyMixedCBD Oil OnlyNo
LouisianaMixedYesNo
MaineFully LegalYesYes
MarylandMixedYesYes
MassachusettsFully LegalYesYes
MichiganFully LegalYesYes
MinnesotaMixedYesYes
MississippiMixed*Yes*Yes
MissouriMixedYesYes
MontanaFully Legal*YesYes*
NebraskaFully IllegalNoYes
NevadaFully LegalYesYes
New HampshireMixedYesYes
New JerseyFully Legal*YesYes*
New MexicoMixedYesYes
New YorkMixedYesYes
North CarolinaFully IllegalNoYes
North DakotaMixedYesYes
OhioMixedYesYes
OklahomaMixedYesNo
OregonFully LegalYesYes
PennsylvaniaMixedYesNo
Rhode IslandMixedYesYes
South CarolinaFully IllegalNoNo
South DakotaFully Legal*Yes*Yes*
TennesseeFully IllegalNoNo
TexasMixedCBD Oil OnlyNo
UtahMixedYesNo
VermontFully LegalYesYes
VirginiaMixedCBD Oil OnlyYes
WashingtonFully LegalYesYes
West VirginiaMixedYesNo
WisconsinMixedCBD Oil OnlyNo
WyomingFully IllegalNoNo

We’re Your Employment Practices Liability Resource

You don’t have to respond to this changing risk landscape alone. We’re here to help you navigate these EPL market trends with ease. For additional coverage guidance and solutions, contact ALLCHOICE Insurance today


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