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2020's Top Employer Liability Risks, According to EPL Insurers

What are some of the top risks for liability employers are facing in 2020? Recently, the Professional Liability Underwriting Society held an annual conference where panelists discussed what risks are newly emerging in the industry. After all, who would know more about emerging employment law risks than the companies that insure employers?

According to the panel, the areas where we can expect to see employment practices liability (EPL) risks this year include:

  • The use of biometrics
  • The treatment of legal cannabis users
  • Sexual harassment
  • Americans With Disabilities Act claims against employer websites

Biometrics and privacy claims

The panelists thought that employee privacy claims around biometric identification would be the top new claim in 2020. Biometric identifiers are body parts that are unique to each person, such as faces, handprints and voices. The use of biometrics is an increasingly popular replacement for usernames, passwords and ID cards.

The concern is that these biometrics might be compromised, exposing an employee's private information to hackers. This could allow identity theft. Additionally, at least two states have passed laws regulating the use of biometric data.

It is crucial to have systems in place to protect any employee or customer biometric data you are collecting. Give notice that you are collecting the information and obtain their written consent, if possible. Create a data retention policy that sets out how the data will be used and stored and when it will be destroyed.

Cannabis concerns

Now that Maryland, Virginia and Washington, D.C., have taken action to decriminalize cannabis or legalize it in some form for medical use, we join other areas in trying to decide how to handle off-hours and medical use of the drug. For example, where medical marijuana is legal, should workers be allowed to use it for a prescribed medical condition, as long as they don't come to work impaired? Does it make sense to terminate employees for using the drug in their off hours when it is legal or decriminalized?

Although the federal Americans With Disabilities Act (ADA) does not allow discrimination claims based on the use of medical marijuana, state courts may decide that employees have a right to use their prescribed medical marijuana without fear of termination.

You may wish to keep that in mind when you set your policy for marijuana use by employees.

#MeToo continues to influence

Not only have people been filing more sexual harassment charges with the EEOC since the #MeToo movement came to prominence but the agency is pursuing more litigation than before, according to one panelist. Charges with the EEOC are down overall, but sexual harassment charges have risen slightly. The fact that overall charges are down may also be giving the agency more time to pursue those charges it does receive.

The EEOC's preliminary numbers for 2018 show that the agency filed 66 lawsuits total -- 44 of which were related to sexual harassment. That was more than a 50% increase over 2017. As far as the proceeds from civil actions, the EEOC reports that it brought in $70 million for sexual harassment victims in 2018, up from $47.5 million the year before.

ADA website compliance

Finally, the panel projected that companies could see claims if their websites aren't compliant with the Americans With Disabilities Act. This could involve a company's website being inaccessible to certain employees as well as third-party claims from job applicants and consumers.

According to one panelist, these types of ADA lawsuits have almost tripled in the last five years. In fact, there were more website access lawsuits filed in the first six months of 2018 than in 2017 altogether.

Instead of responding to complaints piecemeal, have an ADA compliance expert review your website and let you know where your site could be improved. Then, follow through with the improvements until the expert says your site is compliant.

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