Gibbons Program On Employment Practices Liability

Monday, October 1, 2007 - 01:00

Editor: Ms. Amalfe, would you tell our readers something about your practice?

Amalfe: Over the past 20 years my practice has been focused primarily on defending companies in cases brought by current or former employees relating to alleged inappropriate employment practices. In addition, I spend time counseling clients about addressing employee issues in a proactive way and in training employees with respect to a myriad of legal requirements relating to employment.

Editor: I understand Gibbons is putting on a program entitled Employment Practices Liability at the end of October. What is the origin of this initiative?

Amalfe: Our clients are always looking for information on current trends in employment law, and this is an area where things evolve on an ongoing basis. We thought it made sense to do two things: provide our clients with an update on the state of the law, particularly in some of the hot areas, and give them information about employment practices liability insurance, which is becoming increasingly popular.

Editor: Why now? Are there particular issues that we should be calling to the attention of our corporate counsel readers?

Amalfe: I think that both the EEOC and private bar have become more active in looking for systemic discrimination, as opposed to single-plaintiff charges. More class-based and multi-plaintiff cases are being brought, and some of these are very big cases indeed. In this context, what would have been a single plaintiff case just a few years ago is now a large class action or multi-plaintiff case. Additionally, plaintiffs perceive the law to have become more favorable to them in areas such as retaliation, wage and hour, discrimination, and certain disabilities areas.

Editor: Please tell us about the speakers you have assembled from the firm.

Amalfe: I will speak on the hot topics in employment law. This will include what has come to the forefront in the past year or so, including an increase in disability discrimination cases.

Loren Gesinsky of our New York office is going to discuss retaliation. There are some recent decisions on retaliation that are very interesting.

Then we will have a panel discussion on practical approaches to preserving electronic data and avoiding spoliation claims. The plaintiffs' bar has become very astute in extorting settlements by developing discovery requests that make it prohibitive for the defendant to respond. We will have something to say about e-discovery issues in the employment law context.

Another panel will discuss the state of the U.S. and Bermuda insurance market for Employment Practices Liability insurance. They will cover the growth in frequency and severity of claims and the corresponding growth of this insurance coverage. An insurance market analysis will be presented detailing the insurers that offer this coverage, scope of the coverage, limits available, and any significant policy form differences in the marketplace. For example, the Bermuda market can offer broader punitive damage coverage while U.S. insurers are prohibited from covering punitive damages in some states. The group will also share some practical suggestions on information required to successfully negotiate with the insurance market.

Finally, Elizabeth Grossman, Regional Attorney for the New York District of the U.S. Equal Employment Opportunity Commission, will be our luncheon speaker. She will address current initiatives and trends at the EEOC.

Editor : And the audience? Who will benefit from this program?

Amalfe: Any company with a workforce, large or small, will benefit from this program. The program is directed at risk managers of larger companies and human resources professionals, as well as in-house lawyers.

Editor: Would you give us an overview of the program?

Amalfe : In the Burlington Northern decision a year ago, the United States Supreme Court gave an expansive interpretation of what constitutes an adverse employment action for retaliation purposes. Lower courts have since interpreted Burlington Northern in a number of directions. We intend to discuss the trends that we see across a number of Circuit Courts of Appeal and state courts. We also intend to explore whether Burlington Northern has created an injury requirement for retaliation claims that may ultimately prove very useful to employers in defending against such claims.

On employment practices insurance, we will address the changing nature of coverage, including changes in the limits and the pricing structure.

The hot topics in employment law that I will discuss include class actions, reverse discrimination, sexual harassment and several Family Medical Leave Act cases.

On e-discovery, we will provide a look at best practices - and a very practical approach - to preserving electronic data and avoiding spoliation claims. Companies need to have a process in place before an action is brought. It is also important to understand how insurers look at data preservation. The insurance company has a considerable stake in having the company on top of all of its e-discovery issues because that is often the difference between a defensible case and one that is simply too expensive to consider defending. Insurers are very interested in efficient and effective e-discovery preservation and retention procedures. On this subject we will have a panel that includes in-house counsel, a managing director of AON, a major insurance broker, and Ghillaine Reid, a member of our E-Discovery Task Force, all discussing various issues relating to e-discovery, including what happens when a company is not proactive.

Editor: Please give the particulars of the program.

Amalfe: The program is scheduled for October 30, 2007, from 8:30 am to 2:00 pm, at the Gibbons headquarters at One Gateway Center in Newark. You can obtain complete details on this event on our website at, or by contacting Carolyn Becker at (973) 596-4452 or

Please email the interviewee at with questions about this interview.