Written by Pamela Szczesniak & Mary Grandy
Technology continues to change the way society interacts and connects with one another. In the past, employers could influence their employees’ behavior or communications with proper supervision and etiquette education – at least during work hours. With social media sites such as Facebook, Twitter, and LinkedIn, however, employers have little or no control over what comments their employees post on the Internet on their own time.
Historically, employment practices liability insurance (EPLI) has been considered by employers to be an effective means of addressing the exposure to claims arising from employee allegations stemming from a multitude of torts. These include harassment, discrimination, wrongful discharge, mental anguish, and much more. As the nature of those employment practices liability claims continue to evolve, underwriters continue to try to meet the needs of employers while at the same time defining where those exposures are.
Over time, most insurers have broadened policies to offer limited coverage arising out of third-party claims of discrimination or harassment. In recent years, many insurers have offered options for defense for claims arising out of wage and hour allegations and illegal alien investigative costs.
There is now a new type of claim emerging and becoming increasingly common. These claims arise from postings found on various social media websites. Third party claims of defamation, invasion of privacy, libel arising out of the use of social media, and workplace bullying are increasing in frequency. Competitors have filed suits alleging defamation or libel. Employees might post disparaging comments not only about their employer but also about co-workers that could result in significant defense costs to businesses.
Employers are at risk for whatever statements employees make on public media sites, and there is little that can be done to control that situation. To protect yourself or your clients in case of one of these claim scenarios, limited coverage for defense of these matters is available.
A coverage review of your employment practices liability policy can help determine if your coverage is keeping pace with the evolving exposures and lawsuits. While there is typically no coverage for indemnity or damages in such matters, having coverage for the defense alone can make a significant difference to an organization’s bottom line.
Many insurance companies are leading the effort to keep up with the evolution of the business culture. It is clear that increased usage of electronic communication and social media will be an area that continue to develop.
Consult with your Leavitt Group insurance advisor to learn about the tools and coverage available for this risk.
Have a plan in place. Here are examples of off-duty actions affecting employment and/or public image.
Derek Fenton – New Jersey Transit worker was terminated when a video went viral of him burning pages of the Koran in protest against a Ground Zero mosque. Though off duty and not wearing anything related to his employer, they felt it was a direct violation of the NJ Transit code of conduct.
Gilbert Gottfried – Known for his character voice, Gottfried was fired from his well-known job as the voice of Aflac after Tweeting 12 shocking tsunami-related jokes.
Ashley Payne – Former high school teacher was fired because her Facebook profile had pictures of her with beer mugs and wine glasses from her European vacation.
Dawnmarie Souza – National Labor Relation Board found the AMR paramedic in Connecticut was illegally terminated after criticizing her boss on Facebook.
The coverages discussed herein are for illustrative purposes only. The terms and conditions of your specific policy may differ from those described. Please consult the provisions of your policy for the terms, conditions, and exclusions that apply to your coverage.