31st National Conference on Employment Practices Liability Insurance - WEB

EARN CLE CREDITS

31st National Conference on

EMPLOYMENT PRACTICES LIABILITY INSURANCE

Government Updates and Q&A With:

Strategic Guidance for Tackling the Latest High Stakes Challenges Affecting Litigation and Claims Outcomes

Keith E. Sonderling

January 24–25, 2023

Marvin E. Kaplan

Commissioner U.S. Equal Employment Opportunity Commission Board Member National Labor Relations Board (NLRB)

The Westin New York Grand Central, New York

Benchmark Against Top Employer, Insurance, and Legal Minds From:

New Topics for 2023:  The Return to Work: Hybrid/Remote Operations in a Multi-Generational, Employee-Empowered Environment

Aon

Marsh USA inc.

 Political Speech in the Workplace: Dealing with Dobbs vs. Jackson and Union/Non-Union Employee Posturing

Atrium Health

MetLife

 Remote Workforce Monitoring: Knowing the Laws and Latent Pitfalls of Remote, Data-Driven Workforce Monitoring

AXA XL

Nationwide

 Pay Equity/Transparency Claims: The Lesser-Known Lessons for Addressing Wage Disparities

Berkshire Hathaway Specialty Insurance

PepsiCo

 EPLI Claims Trends Amid an Evolving Pandemic and Employee-Empowered Landscape: Costs, Cannabis, Accommodations

CNA Fox IBM Lockton Companies Markel

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PSEG Services Corp.

QBE Insurance Sun Life Financial USI

 Medical Marijuana in the Workplace: Key Takeaways for Multi-Jurisdictional Compliance  Cyber Security, IP and Proprietary Risks: Their Interplay with Remote Work and Employee Monitoring  New Hurdles to Managing Whistleblower Claims: The Latest Defense Strategies for Public Versus Private Claims Associate Sponsor

Cocktail Reception Sponsor

Networking Reception Sponsor

Premier Exhibitor

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Business Information in a Global Context

SPEAKER FACULTY Michelle Arbitrio​ Partner Wood, Smith, Henning, & Berman LLP

Lyndsay M. Ganz Senior Claims Specialist, Counsel, Management Liability Claims Markel

Magdalen Bickford Member, Chair Labor and Employment Group McGlinchey Stafford

Kristi Mackin Galletti Senior Claims Specialist AXA XL

Laura R. Lapidus, Esq. Management Liability (EPL) Risk Control Director CNA Insurance

Beth Mabe Gianopulos Senior Associate, General Counsel Atrium Health Wake Forest Baptist

Stephen Malone Vice President, Legal, Employment and Corporate Affairs Fox

David V. Cascio Partner Laner Muchin

Victoria Gorokhovich Managing Counsel, Labor and Employment PSEG Services Corporation

Joni F. Mason Partner, Senior Vice President, National Practice Leader – Claims USI Insurance Services

Timothy K. Smit, CIPP/C/E/US, CISSP, FIP Global Privacy and Cyber Risk Consulting Practice Leader Lockton Companies

Sarah Y. Cho Assistant Vice President, Global Inclusion Programs Chubb

Paul Gouge, CIPT Cyber Risk Control Consulting Director CNA Insurance

Mary Anne Mullin Senior Vice President QBE Insurance

Keith E. Sonderling Commissioner EEOC

Harry Coleman, FLMI Director, Head of Structured Settlements Products MetLife

John W. Hamlin, Esq. Chief Counsel, Employment, Benefits and Governance Marsh & McLennan Companies, Inc.

Bradford Newman Partner Baker McKenzie

Heidi Urness Partner McGlinchey Stafford PLLC

Alyssa Pianelli Vice President – FSG Legal and Claims Aon

Davida S. Perry Managing Partner Schwartz Perry & Heller LLP

Raymond Cashman, Esq., CPCU Director, Management Liability and Specialty Claims Nationwide

Mercedes Colwin Partner Gordon Rees Scully Mansukhani LLP Claudine R. English, Esq. Vice President, Employment Practices Liability, Crime, and Fidelity Product Officer, Financial Lines – Technical Underwriting Zurich North America

EARN CLE CREDITS

Thomas Hams Managing Director, National EPLI Practice Leader Aon Marvin Kaplan Board Member National Labor Relations Board (NLRB)

Continuing Legal Education Credits

Accreditation will be sought in those jurisdictions requested by the registrants which have continuing education requirements. This course is identified as nontransitional for the purposes of CLE accreditation.

ACI certifies this activity has been approved for CLE credit by the New York State Continuing Legal Education Board.

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Jonathan Kurens, Esq. Senior Vice President Marsh USA inc.

Steven Pearlman Partner, Co-Head, Whistleblowing & Retaliation Group Proskauer Rose LLP Bonnie Pierson-Murphy Vice President and Assistant General Counsel IBM

Rhonda Prussack Senior Vice President and Head of Fiduciary and Employment Practices Liability Berkshire Hathaway Specialty Insurance Marjory Robertson Assistant Vice President & Senior Counsel Sun Life Financial

Alexander Wood Legal Director, Employment Law PepsiCo Jason Zuckerman Principal Zuckerman Law

ACI certifies this activity has been approved for CLE credit by the State Bar of California.

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Visit our online CLE Help Center at www.AmericanConference.com/ Accreditation/CLE/

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DAY ONE: Tuesday, January 24, 2023 8:45

Co-Chairs’ Opening Remarks microphone-alt John W. Hamlin, Esq., Chief Counsel, Employment, Benefits and Governance, Marsh & McLennan Companies, Inc.

Mercedes Colwin, Partner, Gordon Rees Scully Mansukhani LLP 9:00

The Return to Work: Addressing Evolving Risks Around Operations in a Multi-Generational, Employee-Powered Environment microphone-alt Marjory Robertson, Assistant Vice President & Senior Counsel, Sun Life Financial Claudine R. English, Esq., Vice President, Employment Practices Liability, Crime, and Fidelity Product Officer, Financial Lines – Technical Underwriting, Zurich North America Alexander Wood, Legal Director, Employment Law, PepsiCo Magdalen Bickford, Member, Chair Labor and Employment Group, McGlinchey Stafford

10:00

EPLI Claims Trends Amid Remote/Hybrid Work and an Employee-Empowered Landscape: Accommodations, Retaliations, and New Categories of Employment Litigation Two years in, has the pandemic spurred any novel employment-related litigation tools? How is the EPLI market evolving around the latest claims and trends? Are companies asking the right questions around their policies?

microphone-alt Rhonda Prussack, Senior Vice President and Head of Fiduciary and Employment Practices Liability, Berkshire Hathaway Specialty Insurance

Joni F. Mason, Partner, Senior Vice President, National Practice Leader – Claims, USI Insurance Services Thomas Hams, Managing Director, National EPLI Practice Leader, Aon Harry Coleman, FLMI, Director, Head of Structured Settlements Products, MetLife • Litigation around pay compensation for onsite health screenings » US DOL guidelines » Fair Labor Standards Act guidelines

Employers, insurance companies, underwriters & brokers are all continuing to reevaluate a return to work amid the new-normal of the post-COVID workplace and workforce. What are the vagaries of today’s return-to-office, hybrid, and fully remote workforce models and how are employers successfully updating employee protocols and reengaging with a more employee-empowered workforce?

• Reimbursing employees for costs of equipment and utilities used while working from home: State litigation trends

• The new normal of the hybrid/remote workforce

• D&O claim trends: COVID implications, defense costs, cannabis, SPAC and deSPAC

» The importance of addressing mental health of the workforce post-pandemic: Policies and protocols for managers » Navigating the pros and cons of remote supervision ♦ Piloting increased cyber risks » Managing tax implications for cross-border remote workers » The new world of remote work etiquette and harassment claims how to tackle them quickly ♦ Dress ♦ Harassment: Defining “inappropriate actions” in a remote world ♦ Manager training programs » Keeping remote workers feeling invested and valued in an employee-empowered environment • Creating clear return to the office programs: Who’s required to be in the office and why » How do you restrict remote work without losing employee engagement/motivation? » Managing and mitigating ADA claims for those employees who wish to remain remote • The future of vaccination policies, ensuring health and safety while meeting accommodation requirements

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» Case studies out of CA

• Disability discrimination and leave-related cases » EEOC’s assessment of the continued viability of remote work » ADA claims around website accessibility » Mental health • Claims surfacing around inadequate office pandemic prevention protocols • The latest in religion and race-related retaliation • Politically related claims trends • Effective early case assessments: » Predicting value of claim if litigated » Defining costs of claim » Resolving claims early: What do you need to know within the first 60 days • Due to increased risks, are carriers exiting certain classes of business? Are there any new carriers in the market?

11:15

HANDSHAKE Extended Networking Break a C5 Group Company

Business Information in a Global Context

11:45

» How courts are applying causation standards

Marijuana in the Workplace: Key Takeaways for Multi-Jurisdictional Marijuana Compliance

• Trends in state whistleblower laws

Where do employers currently stand around marijuana testing and compliance risk management?

This session will scan a patchwork of US marijuana legalization developments as well as how some employers are creating more relaxed marijuana in the workplace policies amid such a piecemeal regulatory environment.

• The SEC’s renewed focus on preventing employers from impeding whistleblowing through confidentiality agreements

microphone-alt Lyndsay M. Ganz, Senior Claims Specialist, Counsel, Management Liability Claims,

» CA relaxes its standard for proving whistleblower retaliation » NY expands whistleblower protections in Section 740

• The new normal of the workplace: Risk and compliance, training and policy management » Updating investigative strategies and internal policies for whistleblower claims » Defending claims based on complicated fact patterns that implicate various legal disciplines

Markel

• Recent court opinions on whistleblower retaliation claims and variation among jurisdictions

Heidi Urness, Partner, McGlinchey Stafford PLLC

3:30

• Medical marijuana expands across the Southeast and Midwest » Mississippi Medical Cannabis Act • California and lawful off-duty use: Indirect employment protections • New York: Uncertainty surrounding how Section 201-d protections interact with the Marijuana Regulation and Taxation Act (MRTA)

Break

3:45

Cyber Security, IP and Proprietary Risks: Their Interplay with a Remote/Hybrid Work Workforce microphone-alt Timothy K. Smit, CIPP/C/E/US, CISSP, FIP, Global Privacy and Cyber Risk Consulting

• Washington D.C. B24-0109

Practice Leader, Lockton Companies

• Puerto Rico’s disability discrimination statute (Law 44-1985)

Paul Gouge, CIPT, Cyber Risk Control Consulting Director, CNA Insurance

• To what extent are claims on the rise: Setting the record straight on the present and future of liability risks 12:45

Utensils Networking Luncheon 2:00

SPECIAL INTERVIEW WITH THE EEOC microphone-alt Keith E. Sonderling, Commissioner, U.S. Equal Employment Opportunity Commission (EEOC)

• Securing proprietary information while employees work from home • Determining the lengths and limits of employee access to company data • Emerging biometric technologies that support remote workforce management and potential data privacy risks • Reconciling the need to leverage new digital platforms with protecting sensitive, confidential data • Overcoming obstacles to preserving attorney-client and work product privilege when working from home • Retaining any recordings, especially of meetings: Legal obligations

MODERATOR: Bradford Newman, Partner, Baker McKenzie 2:45

New Hurdles to Managing Whistleblower Claims in an Employee Empowered Environment: The Latest and Greatest in Defense Strategies for Public vs. Private Claims microphone-alt Steven Pearlman, Partner, Co-Head, Whistleblowing & Retaliation Group, Proskauer Rose LLP

Jason Zuckerman, Principal, Zuckerman Law • Developments in Sarbanes-Oxley whistleblower retaliation law » The constantly evolving standard for protected activity

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This session will explore how to manage intensifying cybersecurity and data privacy risks posed by remote work.

4:45

The View from the Plaintiffs’ Bar: The Latest Trends and Claims Coming Down the Pipeline microphone-alt MODERATOR: Raymond Cashman, Esq., CPCU, Director, Management Liability and Specialty Claims, Nationwide

Davida S. Perry, Managing Partner, Schwartz Perry & Heller LLP 5:30

Glass-Martini Cocktail Reception Sponsored by Wind down at the end of Day 1 and join your peers for networking and cocktails.

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DAY TWO: Wednesday, January 25, 2023 9:00

Co-Chairs’ Opening Remarks microphone-alt John W. Hamlin, Esq., Chief Counsel, Employment, Benefits and Governance, Marsh & McLennan Companies, Inc.

Mercedes Colwin, Partner, Gordon Rees Scully Mansukhani LLP 9:05

In-House Counsel Panel: Perspectives on Pressing, High Stakes Issues at the Forefront microphone-alt Victoria Gorokhovich, Managing Counsel, Labor and Employment, PSEG Services Corporation

Bonnie Pierson-Murphy, Vice President and Assistant General Counsel, IBM Beth Mabe Gianopulos, Senior Associate, General Counsel, Atrium Health Wake Forest Baptist John W. Hamlin, Esq., Chief Counsel, Employment, Benefits and Governance, Marsh & McLennan Companies, Inc.

11:15

Remote Workforce Monitoring: Avoiding Micro-Surveillance and Knowing the Laws and Potential Pitfalls Surrounding Its Use From eliminating distractions to adding technological automation, there are numerous ways businesses can improve remote workplace productivity with tracking technology. But how do employers monitor without becoming oppressive? When can tracking technology backfire? And what are the potential employee retaliatory pitfalls?

microphone-alt Bradford Newman, Partner, Baker McKenzie Stephen Malone, Vice President, Legal, Employment and Corporate Affairs, Fox • Measuring outcomes–The results that are directly tied to business success. When data gained is the wrong data gained • Building transparency into your employee monitoring programs: What programs will incentivize employees to work diligently in remote situations? New metrics, experimental approaches • Avoiding an oppressive remote monitoring dynamic that might alienate employees • Confidentiality/employee privacy concerns: Legal landmines » Federal workplace privacy and employee monitoring regulations: ECPA » State data privacy regulatory trends: CA, CO, CT, UT, and VA 12:15

SPECIAL INTERVIEW WITH THE NLRB microphone-alt Marvin E. Kaplan, Board Member, National Labor Relations Board (NLRB)

10:00

Political Speech in the Workplace: Critical Updates Around Dealing with Dobbs vs. Jackson and Union/Non-Union Employee Posturing

12:45

Expert panelists will be analyzing the evolving legal landscape and potential employee speech discrimination complications posed by the latest Dobbs vs. Jackson and employee unionizing developments.

1:15

microphone-alt Mary Anne Mullin, Senior Vice President, QBE Insurance Kristi Mackin Galletti, Senior Claims Specialist, AXA XL • Dobbs versus Jackson fallout » Patchwork benefits and compliance » Leave laws » Discrimination claims • Unionizing: Managing backlash between union/non-union employee debate • Determining which policies are advisable or inadvisable for addressing political speech in the workplace » Social media policies and procedures » Dress • Determining parameters that are lawful • When and how far you can go in enforcing the policy 11:00

Break

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Utensils Networking Luncheon Pay Equity and Transparency: Dissecting Recent Defense Wins/ Losses and The Lesser-Known Lessons for Addressing Wage Disparities microphone-alt Jonathan Kurens, Esq., Senior Vice President, Marsh USA inc.

Laura R. Lapidus, Esq., Management Liability (EPL) Risk Control Director, CNA Insurance David V. Cascio, Partner, Laner Muchin • Analyzing newly rolled-out state laws and changes to standards for pay transparency: CA SB1162, NY, WA, CO • Impact of the pandemic: Impact of job losses on data, state of C-suite executive pay • Evaluating racial and ethnic pay differences amid social justice issues • Impact of tight labor market: Starting salary and retention pay decisions • Steps to taking a proactive stance toward releasing pay data publicly • Defending and covering pay equity claims intermingled with gender discrimination claims • The new, emerging trends in pay equity litigation and what is coming down the pipeline

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2:15

Diversity, Equity and Inclusion: Return to Work through a DE&I Lens microphone-alt Alyssa Pianelli, Vice President – FSG Legal and Claims, Aon Michelle Arbitrio, Partner, Wood, Smith, Henning, & Berman LLP Sarah Y. Cho, Assistant Vice President, Global Inclusion Programs, Chubb • Significant regulatory developments, settlements, and litigation activities involving the EEOC • Automated employment decision tool law compliance trends » New York limits digital tools in recruiting with its Automated Employment Decisions Tool Law • Examples of recent court decisions and legal challenges: Key lessons learned • Navigating local laws and labor agreements • Toeing the line around bona fide occupational qualification exceptions • Understanding time limits around discrimination claims under state and federal law • Return to work through a DE&I lens: The design and delivery of custom educational programs, culture scans, and support for the development and/or restructuring of diversity and inclusion policies, programs and practices 3:15

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