COVID-19 Underscores Need for D&O, EPL, and Wage and Hour Insurance

The COVID-19 pandemic is a public health crisis that continues to threaten the safety of people in the United States and around the world. It’s also an unprecedented economic event, and companies and their boards are not immune from the risks it presents. Directors of public, private, and nonprofit organizations will face liability exposures during and after the pandemic that could trigger claims under directors and officers liability (D&O), employment practices liability (EPL), and wage and hour liability (W&H) insurance policies—which makes understanding such coverage more important than ever.

Expect Board- and Management-Targeted Litigation

Since the World Health Organization declared COVID-19 a pandemic on March 11, 2020, we have seen a number of securities class action lawsuits filed against public companies and their directors and officers. To date, shareholder litigation related to COVID-19 has mainly taken the form of securities class action litigation, although there has been at least one derivative action filed. We have also seen a handful of US Securities and Exchange Commission actions filed against companies and at least one individual officer.

Despite the limited number of derivative actions to date, the possibility of an uptick in this type of litigation should be of great concern to directors. A drop in stock price is a prerequisite for a securities class action. But derivative litigation, which involves allegations of a director’s breach of fiduciary duties, can be filed without such a fall in stock price. Derivative settlements and judgments are not usually indemnifiable, making them particularly problematic as they may expose directors’ and officers’ personal assets if they do not have appropriate Side-A insurance coverage in place.

The global impact of the virus has brought a significant increase in supply-chain disruptions and a slowdown or complete halt of business operations in some industries, both of which can heighten insolvency risks. These impacts could thus lead to a company’s inability to fund the defense of its directors involved in company-related litigation, making D&O liability protection essential. Compared to public-company D&O policies, private- and nonprofit-organization D&O policies typically offer broader coverage. Depending on policy wording, the latter coverage could be triggered by pandemic-related claims from various stakeholders, including customers, vendors, and employees.

Potential Liabilities for Employers

The pandemic’s extraordinary effect on workplaces could generate a variety of EPL and W&H claims. We expect plaintiffs’ counsel to advance novel legal theories under the Families First Coronavirus Response Act, the Family and Medical Leave Act, and the Americans with Disabilities Act, among other legislation, as employers struggle to comply with new and sometimes conflicting requirements under these and other employment laws.

History has shown that wrongful termination suits, discrimination suits, and other workplace litigation tend to follow on the heels of an economic downturn. Widespread layoffs, furloughs, and closures amid the pandemic will likely drive future claims. These claims could also be fueled by some new paid sick leave laws that include antidiscrimination and antiretaliation provisions, which prohibit employers from taking adverse action against employees who exercise their rights.

Businesses should also be mindful of potential claims that could arise in connection with managing remote workforces, including employee privacy and cyber claims. Directors and officers might be held personally liable for some alleged violations under wage and hour laws and state equivalents to the Worker Adjustment and Retraining Notification Act, which requires advance notice of plant or office closings.

Certain aspects of these and other types of workplace litigation claims could trigger EPL or W&H coverage, depending on the facts of the claim and policy wording.

It’s difficult to predict the next turn for businesses during the pandemic, but they must ready themselves for potential D&O, EPL, and W&H claims in the weeks and months ahead. Boards and management should work with their insurance advisors to understand how their coverage can apply and prepare to manage potential losses as the crisis continues to unfold.

Sarah Downey is a managing director and the D&O product leader at Marsh.

Black Lives Matter. COVID-19. Fiduciary Duties. Onboarding.It’s essential that directors know what to focus on and when.

Become an NACD member today.

NACD: Tools and resources to help guide you in unpredictable times.

COVID-19 Underscores Need for D&O, EPL, and Wage and Hour Insurance

The COVID-19 pandemic is a public health crisis that continues to threaten the safety of people in the United States and around the world. It’s also an unprecedented economic event, and companies and their boards are not immune from the risks it presents. Directors of public, private, and nonprofit organizations will face liability exposures during and after the pandemic that could trigger claims under directors and officers liability (D&O), employment practices liability (EPL), and wage and hour liability (W&H) insurance policies—which makes understanding such coverage more important than ever.

Expect Board- and Management-Targeted Litigation

Since the World Health Organization declared COVID-19 a pandemic on March 11, 2020, we have seen a number of securities class action lawsuits filed against public companies and their directors and officers. To date, shareholder litigation related to COVID-19 has mainly taken the form of securities class action litigation, although there has been at least one derivative action filed. We have also seen a handful of US Securities and Exchange Commission actions filed against companies and at least one individual officer.

Despite the limited number of derivative actions to date, the possibility of an uptick in this type of litigation should be of great concern to directors. A drop in stock price is a prerequisite for a securities class action. But derivative litigation, which involves allegations of a director’s breach of fiduciary duties, can be filed without such a fall in stock price. Derivative settlements and judgments are not usually indemnifiable, making them particularly problematic as they may expose directors’ and officers’ personal assets if they do not have appropriate Side-A insurance coverage in place.

The global impact of the virus has brought a significant increase in supply-chain disruptions and a slowdown or complete halt of business operations in some industries, both of which can heighten insolvency risks. These impacts could thus lead to a company’s inability to fund the defense of its directors involved in company-related litigation, making D&O liability protection essential. Compared to public-company D&O policies, private- and nonprofit-organization D&O policies typically offer broader coverage. Depending on policy wording, the latter coverage could be triggered by pandemic-related claims from various stakeholders, including customers, vendors, and employees.

Potential Liabilities for Employers

The pandemic’s extraordinary effect on workplaces could generate a variety of EPL and W&H claims. We expect plaintiffs’ counsel to advance novel legal theories under the Families First Coronavirus Response Act, the Family and Medical Leave Act, and the Americans with Disabilities Act, among other legislation, as employers struggle to comply with new and sometimes conflicting requirements under these and other employment laws.

History has shown that wrongful termination suits, discrimination suits, and other workplace litigation tend to follow on the heels of an economic downturn. Widespread layoffs, furloughs, and closures amid the pandemic will likely drive future claims. These claims could also be fueled by some new paid sick leave laws that include antidiscrimination and antiretaliation provisions, which prohibit employers from taking adverse action against employees who exercise their rights.

Businesses should also be mindful of potential claims that could arise in connection with managing remote workforces, including employee privacy and cyber claims. Directors and officers might be held personally liable for some alleged violations under wage and hour laws and state equivalents to the Worker Adjustment and Retraining Notification Act, which requires advance notice of plant or office closings.

Certain aspects of these and other types of workplace litigation claims could trigger EPL or W&H coverage, depending on the facts of the claim and policy wording.

It’s difficult to predict the next turn for businesses during the pandemic, but they must ready themselves for potential D&O, EPL, and W&H claims in the weeks and months ahead. Boards and management should work with their insurance advisors to understand how their coverage can apply and prepare to manage potential losses as the crisis continues to unfold.

Sarah Downey is a managing director and the D&O product leader at Marsh.

Black Lives Matter. COVID-19. Fiduciary Duties. Onboarding.It’s essential that directors know what to focus on and when.

Become an NACD member today.

NACD: Tools and resources to help guide you in unpredictable times.

Making Space for Mental Health in the Workplace

Rob Croner, of CCI Consulting, joins The Leading Advantage Podcast to discuss how leaders can support their own and their team’s mental health through chaotic times.  Mental Health and Emotional Wellbeing are always critically important but by continuing to provide support and guidance on these issues HR and Leaders can keep their teams engaged and productive.
Listen Here on Spotify
Listen Here on iTunes
The post Making Space for Mental Health in the Workplace appeared first on CPIWorld.

The Only Way To Avoid Compound Errors In Business And Life

We all do it. We make a mistake and then, in trying to fix it, make it worse. And we all know the way to stop the cycle: own up to the mistake, accept the new reality, and build from there.
It’s almost a cliché.
“Don’t consider sunk costs.”
“Don’t throw good money after bad.”
“When you’re in a hole, stop digging.”
Yet, that’s exactly what people do.
Click here to read more.

 
The post The Only Way To Avoid Compound Errors In Business And Life appeared first on PrimeGenesis.

How Your Chief of Staff Can Give You Increased Leverage

At some level, you know the problem. COVID-19 has switched your world from live to virtual. It turns out there are some nice things about this including savings in commuting and travel time and costs and more efficient meetings. Still, there’s something missing – chance encounters and informal conversations. Your chief of staff can give you increased leverage by managing you, priorities, programs and projects, and communication. Most leaders are unbalanced. They are relatively stronger or weaker across strategy, organization and operations.
• Those relatively weaker operationally need strong chief operating officers.
• Those relatively weaker organizationally need strong chief human resource officers.
• Those relatively weaker strategically need strong chief strategy officers, often titled CFO, CMO, General Counsel or the like. They’re important over time and need to be deliberately replaced with excuses to contact and scheduled informal conversations.
Click here to read more.

 
The post How Your Chief of Staff Can Give You Increased Leverage appeared first on PrimeGenesis.

Chance Encounters Have Been Obliterated By COVID-19. Here’s How To Replace Them.

At some level, you know the problem. COVID-19 has switched your world from live to virtual. It turns out there are some nice things about this including savings in commuting and travel time and costs and more efficient meetings. Still, there’s something missing – chance encounters and informal conversations. They’re important over time and need to be deliberately replaced with excuses to contact and scheduled informal conversations.
Click here to read more.

 
The post Chance Encounters Have Been Obliterated By COVID-19. Here’s How To Replace Them. appeared first on PrimeGenesis.