32nd National Conference on Employment Practices Liability Insurance - DS

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32ND NATIONAL CONFERENCE ON

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EMPLOYMENT PRACTICES LIABILITY INSURANCE

October 24–25, 2023 Hyatt Regency McCormick Place Chicago, IL

2023 Review: High Stakes Challenges Affecting EPL Litigation and Claims Outcomes

Don’t Miss Forward-Looking, Practical Discussions Covering the Newest, Highest Stakes EPLI Challenges and Trends CHEVRON-RIGHT 2023 REVIEW: Views from the Brokers/Carriers on Claim Trends, New Products Entering into the Market, Underwriting Considerations

CHEVRON-RIGHT NEW! COUNSEL/INSURER/POLICYHOLDER ETHICS: The ethical challenges that arise from counsel, insurer and policyholder EPL relations

CHEVRON-RIGHT 2023 REVIEW: Views from In-House Counsel on Post-Pandemic Drivers That Are Underlying the Purchase of Coverage

CHEVRON-RIGHT NEW! Negotiation, Mediation and Arbitration of EPL Claims

CHEVRON-RIGHT NEW! AI IN THE WORKPLACE: Compliant Use in Hiring, Pushing Workers into AI Fluency CHEVRON-RIGHT NEW! RIF’S AND THE WHITE-COLLAR RIPPLE EFFECT: Internal Investigations, Avoiding Backlash, and a RIF’s Risk Mitigation Checklist CHEVRON-RIGHT NEW! BERMUDA INSURANCE MARKET TRENDS: A 2023 Wrap-Up and What to Expect in 2024

CHEVRON-RIGHT THE HYBRID WORKFORCE: The Reality of Reasonable Accommodations, Remote Supervision, and Cyber-Risk CHEVRON-RIGHT NON-COMPETES IN THE CROSSHAIRS: Managing Restrictive Covenants amid Extraordinary Regulatory Scrutiny Sponsored by Exhibitor 60

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Special Offer!

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Offer Ends September 23

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ACI/C5 reserves the right to review eligibility.

Benchmark Against Top Employer, Insurance, and Legal Minds from: Accenture Federal Services

Beazley Group

Nationwide

Allianz Commercial

Chubb

Saiber

Allied World Assurance Company, Ltd.

Gallagher Bassett

Sompo International

Amwins Insurance Brokerage, LLC

Great American Insurance Group

Syndio

Aon

HUB International

Travelers

Argo Group

Jackson Lewis P. C.

Vantage Risk Ltd.

Atrium Health

Marsh USA Inc.

Vouch Insurance

AXA XL

Mosaic Insurance

Zurich North America

2 | LINKEDIN Financial Services: Legal, Regulatory, and Compliance Professionals

Distinguished Speakers GOVERNMENT FACULTY

Angie Cowan Hamada Regional Director, Region 13 National Labor Relations Board (NLRB)

Keith E. Sonderling Commissioner U.S. Equal Employment Opportunity Commission (EEOC)

2023 CO-CHAIRS

Joe Kelly Senior Vice President, Commercial Management Liability Sompo International

Gerald L. Maatman, Jr. Partner, Chair, Workplace Class Action Group Duane Morris

Samantha J. Manfredini Look, Esq. Vice President, EPLI, Financial Services Group, Commercial Risk Solutions Aon

COMPREHENSIVE EPLI PERSPECTIVES FROM Michelle Bailey Senior Vice President/Underwriter AXA XL

Camille Bryant Member McGlinchey Stafford

Heather Becker Partner Laner Muchin

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

Magdalen Bickford Member, Chair Labor and Employment McGlinchey Stafford Justin Blacklock, RPLU Assistant Vice President Chubb

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Mercedes Colwin Partner Gordon Rees Scully Mansukhani LLP Elissa Doroff Senior Vice President, Head of Americas Mosaic Insurance

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Claudine R. English, Esq. Vice President, Employment Practices Liability, Crime, and Fidelity Product Officer, Financial Lines – Technical Underwriting Zurich North America Rachel Freedman Vice President – Head of Employment Practices Liability Claims Sompo International David Garrigus Executive Vice President – North American Practice Leader – ProEx HUB International

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Beth Mabe Gianopulos Senior Associate, General Counsel Atrium Health

Distinguished Speakers

Jan Haylett Senior Vice President, Bermuda and Global Markets Claims Allied World Assurance Company, Ltd Christine Hendrickson Vice President, Strategic Initiatives Syndio Letoyia C. Horton Claims Focus Group Leader – EPL Beazley Group Kristina Kerwin Senior Counsel, Employment Law, North America Accenture Federal Services Leticia Kimble Partner RainesFeldman Littrell LLP Jonathan Kurens Senior Vice President Marsh USA Inc.

Jordan Kurkowski Executive Vice President, Professional Lines Amwins Insurance Brokerage, LLC Laura R. Lapidus, Esq. Management Liability (EPL) Risk Control Director CNA Insurance Duan Leverock Vice President Aon Bermuda Ltd. Kimberly Lewis Senior Vice President, Professional Insurance Manager Argo Group Erin K. Mannesto, J.D. Complex Claims Analyst, Financial Lines & Liability – North America Allianz Commercial Jody Kahn Mason Principal Jackson Lewis P. C. Matt May Divisional Assistant Vice President – Claims, Executive Liability Division Great American Insurance Group

4 | LINKEDIN Financial Services: Legal, Regulatory, and Compliance Professionals

Dianna D. McCarthy Partner Kaufman Borgeest & Ryan Laura McKinstry Senior Claims Counsel Travelers Jennifer R. O’Connor Member Saiber Brian D. Smith Senior Vice President Gallagher Bassett Peter A. Steinmeyer Partner Epstein Becker Green John Wallace Chief Insurance Officer Vouch Insurance Sherron Williams Senior Vice President, Financial and Professional Lines – Bermuda Vantage Risk Ltd

DAY ONE: Tuesday, October 24 8:45

Co-Chairs’ Opening Remarks Joe Kelly Senior Vice President, Commercial Management Liability Sompo International

9:00

Gerald L. Maatman, Jr. Partner, Chair, Workplace Class Action Group Duane Morris

Samantha J. Manfredini Look, Esq. Vice President, EPLI, Financial Services Group, Commercial Risk Solutions Aon

2023 REVIEW: Views from the Brokers/Carriers on Claim Trends, New Products Entering into the Market, Underwriting Considerations, Plus Insights on the Defense Counsel Panel

• How brokers are approaching the market: View from the brokers on what clients are most concerned about • Underwriting considerations as they relate to claims trends and market conditions • How carriers are responding to EPL claims • Bringing new products to market: Identifying coverage gaps in the market; underwriting concerns; claims considerations and current exclusions • Key trends to watch out for: » The Pregnancy Fairness Act: What is a known accommodation? Where do regulations stand? » To what extent are marijuana claims on the rise: Setting the record straight on the present and future of liability risks » Use of AI in the Workplace: How might it impact claims?

David Garrigus Executive Vice President – North American Practice Leader – ProEx HUB International Brian D. Smith Senior Vice President Gallagher Bassett Erin K. Mannesto, J.D. Complex Claims Analyst, Financial Lines & Liability – North America Allianz Commercial

» Non competes under the microscope: Impact on claims risk • Claims severity: Types of claims and industries with the most claims » Social inflation’s impact on increased cost of settlements » Is the industry seeing a backlog of claims coming to light?  Late claim reporting • Foreign claims: Insuring US companies with foreign locations; insuring domestic companies with foreign origins; which carriers have these polices and what is being covered

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10:00 2023 REVIEW: The Clients’ Perspective – Views from In-House Labor and Employment Counsel on Current Trends in

the EPLI Marketplace and Post-Pandemic Drivers That Are Underlying the Purchase of Coverage

• When is coverage triggered and needed?

DAY ONE: Tuesday, October 24

• Avoiding lawsuits by minimizing claims: Early resolution strategies: » Predicting value of claim if litigated » Defining costs of claim » Resolving claims early: What do you need to know within the first 60 days • Best practices for controlling the cost of the defense of claims » Payouts; Alternative fee arrangements » Implementing internal cost-reduction procedures » Reducing the costs associated with the use of defense counsel • Pitfalls employers should avoid while easing their COVID-era policies • Vaccination policy trends: » Which precautionary policies are being retained? » What kinds of claims are still popping up around vaccination?

• Which reasonable accommodations are being preserved? » What are the greatest post-pandemic risks around claims?

• Staying compliant with jurisdictional post-COVID requirements: NY, CA • Practical applications of EEOC post-COVID guidelines • OSHA requirements and any new guidance • I-9 compliance: How to update your virtually inspected forms

11:00 Extended Networking Break

6 | LINKEDIN Financial Services: Legal, Regulatory, and Compliance Professionals

Kristina Kerwin Senior Counsel, Employment Law, North America Accenture Federal Services Beth Mabe Gianopulos Senior Associate, General Counsel Atrium Health

DAY ONE: Tuesday, October 24

AI IN THE WORKPLACE 11:45 Emerging Themes Governing the Use of AI in the Workplace: Administering the Power of Automation Around

Workplace Transparency, Discrimination, and Data Integrity

Letoyia C. Horton Claims Focus Group Leader – EPL Beazley Group

• Transparency: AI screening in employment decisions. Providing notice to the candidates » New York City’s law regulating AI screening » Illinois’ law targeting AI used to analyze video interviews • Anti-discrimination » EEOC Title VII guidance; Employers and their responsibility to evaluate their algorithmic decision-making tools for disparate impact, including by considering the “four-fifths” rule • System and data integrity: Audits, testing, reporting and recordkeeping » Jurisdictions where employers’ regular audits and testing of AI systems must assess whether the system results in bias towards certain individuals, privacy risks (i.e., with respect to identifying information) or other known harm or material negative impact

Laura R. Lapidus, Esq. Management Liability (EPL) Risk Control Director CNA Insurance Dianna D. McCarthy Partner Kaufman Borgeest & Ryan

» California’s Civil Rights Council proposal of new rules that would permit employers to use evidence of anti-bias testing as a defense to allegations of a discriminatory adverse impact of AI or automated system • New developments in this rapidly evolving area of employment law: Federal, state and local levels • A potential sea change with the use of AI/ChatGPT within law firms » Litigation data, trial transcript analyzing » What are the risks around the technology’s accuracy and security, most specifically about how law firms’ concerns of privacy and client confidentiality?

• The benefits of AI as a tool for workplace efficiencies: » Goal setting and tracking

» Meeting summaries and action items

» Time management/work coaching

» Customer support

» Drafting emails and reports

» INTERVIEW

12:45

INTERVIEW

Navigating Employment Discrimination in AI and Automated Systems Keith E. Sonderling Commissioner U.S. Equal Employment Opportunity Commission (EEOC)

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MODERATED BY:

Mercedes Colwin Partner Gordon Rees Scully Mansukhani LLP

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1:15

Magdalen Bickford Member, Chair Labor and Employment McGlinchey Stafford

Utensils Lunch Sponsored by

RIF’s AND WHITE-COLLAR LAYOFFS 2:30

RIF’s and the White-Collar Ripple Effect: Internal Investigations, Avoiding Backlash, and a RIF Compliance Checklist

DAY ONE: Tuesday, October 24

• Internal investigations around what will trigger EPL coverage amid a decrease in staff

Jonathan Kurens Senior Vice President Marsh USA Inc.

• White-collar layoffs: Identifying particular insider risks » Investigating non-competes » Preventing data breaches

Joe Kelly Senior Vice President, Commercial Management Liability Sompo International

» Protecting intellectual property » Skeletons in the closet often uncovered when amid executive-level layoffs • Mediation and arbitration requirements for potential retaliation around: » Sexual (or other workplaces) harassment

» Negligent evaluation

» Wrongful termination

» Wrongful discipline, bullying

» Failure to employ or promote

» Wrongful infliction of emotional distress

» Breach of terms of employment contract • Navigating jurisdictional employee protection nuances and pitfalls • Maintaining inter-departmental communications around layoff protocols: Awareness of coverage, record-keeping, gaining advice from internal EPL counsel • Updating and circulating employee off-boarding procedures • Fundamentals for checking all the legal compliance boxes in designing and implementing RIF programs

BERMUDA MARKET UPDATE 3:15

A 2023 Roundup of Bermuda Insurance Market Trends and What to Expect in 2024

• Intro to Bermuda marketplace » Product availability » Who buys in Bermuda? » Why Bermuda • 2023 market challenges: » Areas/industries/policies of increased concern » Severe claims and impact of social inflation • 2024 outlook: » How are Bermuda market players underwriting risk? » Appetite: Attachment levels, pricing, coverage, and overall availability of capacity

8 | LINKEDIN Financial Services: Legal, Regulatory, and Compliance Professionals

Jan Haylett Senior Vice President, Bermuda and Global Markets Claims Allied World Assurance Company, Ltd Michelle Bailey Senior Vice President/Underwriter AXA XL Duan Leverock Vice President Aon Bermuda Ltd.

DAY ONE: Tuesday, October 24

4:00

Break

4:15

Cyber Security, Data Privacy, BIPA and Biometrics: Their Interplay with a Remote/Hybrid Workforce

• Securing proprietary information while employees work from home • Determining the lengths and limits of employee access to company data • BIPA: Management of biometric technology within BIPA rules and potential claims risks » Current biometric claims case analyses: Rogers versus BNSF » Lessons learned from this case and how to analyze BIPA claims in the future

Elissa Doroff Senior Vice President, Head of Americas Mosaic Insurance Jodi Kahn Mason Principal Jackson Lewis

• 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

5:00

The New Normal of the Hybrid Workforce: Addressing Accommodations and Evolving Risks Around Operations in a Multi-Generational Environment

• The new normal: » The new reality of reasonable accommodations in a post-pandemic work environment » The importance of addressing mental health of the workforce: Policies and protocols for managers » The mounting, and mostly silent, employee experience gap » Navigating the pros and cons of remote supervision  Piloting increased cyber risks  Use of AI and its supervision risks: Privacy, discrimination » Managing tax implications for cross-border remote workers » The new world of remote work etiquette and harassment claims how to tackle them quickly  Dress

Heather Becker Partner Laner Muchin Claudine R. English, Esq. Vice President, Employment Practices Liability, Crime, and Fidelity Product Officer, Financial Lines – Technical Underwriting Zurich North America Rachel Freedman Vice President – Head of Employment Practices Liability Claims Sompo International

 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

5:45

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Close of Day One. Glass-Martini Cocktail Reception Sponsored by

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DAY TWO: Wednesday, October 25 9:00

Co-Chairs’ Opening Remarks Joe Kelly Senior Vice President, Commercial Management Liability Sompo International

9:05

Gerald L. Maatman, Jr. Partner, Chair, Workplace Class Action Group Duane Morris

Samantha J. Manfredini Look, Esq. Vice President, EPLI, Financial Services Group, Commercial Risk Solutions Aon

INTERVIEW

Recent Developments at the NLRB

Angie Cowan Hamada Regional Director, Region 13 National Labor Relations Board (NLRB)

MODERATED BY:

Camille Bryant Member McGlinchey Stafford

NON-COMPETES THINK TANK 9:35

D&O and Non-Competes in the Crosshairs: Issues in Enforcing and Managing Restrictive Covenants amid Extraordinary Regulatory Scrutiny

• Recent trends in non-competition clauses • D&O trusts and captives • D&O underwriting behaviors • Securities litigation trends • Restrictive policy language interpretations • Federal/jurisdictional trends around use of non-competes »

MN/NY ban on use of non-competes

»

NLRB: The outcome of the McLaren Macomb decision

»

FTC: Final rule outlook and inevitability of legal challenges

• An interactive, audience-feedback driven review of sample non-competition clauses

and analyses of their enforceability

10 | LINKEDIN Financial Services: Legal, Regulatory, and Compliance Professionals

Jordan Kurkowski Executive Vice President, Professional Lines Amwins Insurance Brokerage, LLC Peter A. Steinmeyer Partner Epstein Becker Green

DAY TWO: Wednesday, October 25

10:30 Break 10:45 Pay Equity and Transparency: Dissecting Recent Defense Wins/Losses and The Lesser-Known Lessons for Addressing

Wage Disparities

• Analyzing newly rolled-out state laws and changes to standards for pay transparency: CA, CO • Impact of the white-collar recession: Impact of job losses on data, state of C-suite executive pay • Evaluating racial and ethnic pay differences amid social justice issues • Loosening 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

Samantha J. Manfredini Look, Esq. Vice President, EPLI, Financial Services Group, Commercial Risk Solutions Aon Christine Hendrickson Vice President, Strategic Initiatives Syndio Matt May Divisional Assistant Vice President – Claims, Executive Liability Division Great American Insurance Group

11:30 EPLI, Wage & Hour Claims and PAGA Actions: The Newest High Stakes Questions Confronting Practitioners and

Their Impact on Defense Strategies

• The Gig Economy: Status report on employee versus independent contractor classification • The state of PAGA in 2023: » PAGA representative waivers: Permission to prosecute claims of other alleged aggrieved employees » Employer assertions that some PAGA claims/cases are unmanageable, and therefore cannot proceed on a representative basis » Settling a PAGA case where there exists a concurrent PAGA case with overlapping claims » Claims and defense cost expense • Mixed allegation claims where there is a discrimination claim coupled with W&H allegations • EPLI changes and how carriers are responding to the continued growth of wage and hour claims • Exploring sub-limits on wage and hour claims under EPLI policies • Assessing how riders or addendums to EPLI policies for wage and hour claims affect the market • FLSA clarity around joint employer liability

Sherron Williams Senior Vice President, Financial and Professional Lines – Bermuda Vantage Risk Ltd Kimberly Lewis Senior Vice President, Professional Insurance Manager Argo Group John Wallace Chief Insurance Officer Vouch Insurance Leticia Kimble Partner RainesFeldman Littrell LLP

• Statute of limitations, waivers and arbitration » How far employers can go and where to draw the line

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DAY TWO: Wednesday, October 25

12:15 Lunch

COUNSEL/INSURER/POLICY ETHICS 1:30

Overcoming the Ethical Dilemmas Associated with the Relationship between Counsel, Insurer and Policyholder

• Examining the unique ethical challenges that arise from the relationship among counsel, insurer and policyholder • Identifying and navigating the conflicts of interest that arise because of this tripartite relationship • Analyzing the dual-client dilemma facing counsel retained by an insurance company to represent a policyholder • Devising strategies for overcoming and avoiding the challenges created by this trichotomy • Establishing best practices for communicating with plaintiffs and company employees to avoid crossing ethical lines

Raymond Cashman, Esq., CPCU Director, Management Liability and Specialty Claims Nationwide Magdalen Bickford Member Chair Labor and Employment

EPL NEGOTIATION 2:15

Negotiation, Mediation and Arbitration of EPL Claims

• Developing winning strategies for arbitrating EPL claims • Assessing the challenges of overseas arbitration of EPLI coverage disputes, and tips on how to protect oneself during the process • Establishing strategies for settling collective and class EPL actions • Understanding how the actual EPL policy can play a crucial role in the settlement and mediation of cases • Evaluating recent successes and failures in the use of ADR to resolve EPL claims • Identifying key break points during litigation at which to consider mediation • Devising tactics for persuading employees, employers and carriers to attempt mediation • Assessing the costs of litigation and conducting a cost/benefit analysis to determine your ADR options • Developing strategies for achieving a result in arbitration/mediation that is satisfactory to all parties • Assessing the merits of arbitration as a means of resolving a discrimination, harassment or other employment practices claim

3:30

Close of Conference

12 | LINKEDIN Financial Services: Legal, Regulatory, and Compliance Professionals

Laura McKinstry Senior Claim Counsel Travelers Jennifer R. O’Connor Member Saiber

UPCOMING EVENTS

November 21 – 22, 2023 • Toronto, ON

January 23 – 24, 2024 • New York, NY

April 2024 • New York, NY

June 2024 • Toronto, ON

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EARN CLE /ETHICS 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.

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

ACI has a dedicated team which processes requests for state approval. Please note that event accreditation varies by state and ACI will make every effort to process your request.

Questions about CLE credits for your state? Visit our online CLE Help Center at www.AmericanConference.com/Accreditation/CLE/

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