The Employment Law Counselor Episode 22

Navigating Labor and Employment Challenges During the Holiday Season

Happy Holidays from The Employment Law Counselor Podcast! The newest episode, in collaboration with the Professional Liability Underwriting Society (PLUS) and hosted by Victoria Fuller, Partner, and Laura Corvo, Counsel, focuses on issues employers grapple with during the holiday season. This conversation offers employers an array of advice on navigating the holiday season, including a cautionary tale about an incident at an office holiday party. The episode also dives into the issues many employers face as they wind down 2025 and gear up for 2026 such as: managing year-end bonuses, employee leave obligations, new AI technologies, new state laws and more.

Special thanks goes to White and Williams, LLP for partnership in the production of this episode.

Transcript

The Employment Law Counselor Episode 22

PLUS Staff: [00:00:00] Welcome to this PLUS Podcast, The Employment Law Counselor. Before we get started, we'd like to remind everyone that the information and opinions expressed by our speakers today are their own and do not necessarily represent the views of their employers or of PLUS. The contents of these materials may not be relied upon as legal advice.

Victoria Fuller: Happy holidays, everyone! Welcome to The Employment Law Counselor Podcast. This is the special holiday edition. I'm your host, Victoria Fuller. I am joined by my co-host Laura Corvo. Happy holidays, Laura. 

Laura Corvo: Happy holidays, Vicki. I can't believe the holidays are here already. Wow, I don't know where this year went.

Victoria Fuller: I know. This is such a busy time of year. I don't know about you, but between shopping and baking and getting presents wrapped and hiding them and then re hiding them and decorating. 

Laura Corvo: Yeah, that’s right, Vicki. I am totally knee deep in all of that stuff right now.

 But [00:01:00] it's not just a hectic time for us, it's really a hectic time for employers as well. It's why we decided to make our last podcast of the year a special holiday edition where we highlight some of the issues employers are grappling with as they plan to wrap up 2025 and also some of the things that employers should be looking for is the gear up for 2026.

So, Vicki, why don't you kick us off with something most of us look forward to at this time of year, and that is the annual office holiday party. 

Victoria Fuller: I know we couldn't have the holiday special episode without talking about the holiday party. The holiday party is a great way to build morale, to celebrate successes of the past, to let people kind of let loose. But like everything else we talk about, if it's not planned correctly, holiday parties can also present a variety of legal liabilities for employers. 

I'm going to start by talking about inadvertent wage and hour violations because [00:02:00] it's not what people think about. When you think about holiday parties, you think about sexual harassment, right? And we'll talk about that for sure. But one issue that comes up that I think it's overlooked is, “what do you do with non-exempt employees?” Do you have to pay them for attending the holiday party?  I think the answer is, it depends. 

That’s why this is important to talk about. Where attendance is mandatory, you should absolutely be paying your non-exempt employees for attending. If it's optional, generally speaking, you don't have to pay them for attending. If it's optional, there needs to be zero pressure, none on those employees to attend. If there's any kind of implicit pressure, any indication that there could be an adverse consequence for not attending, best practice [is to] just pay them for attending. That way you're in the clear.

Laura Corvo: To that point, Vicki, I think it's [00:03:00] important that if you are making it optional, you send out a written communication that makes it very clear that it's optional. You [should] remind your managers that it's optional [so] that they're not putting pressure on people to attend if you're not paying them.

Victoria Fuller: Completely agree. You want to make sure that everybody is in the understanding that this is 100 percent optional. You do not have to go. Do not tell your subordinates that they should go or that they have to go. 

We also can't talk about holiday parties without talking about alcohol. Alcohol can be the source of so much potential employer liability, some of which would fall under an EPL policy[and] some of which would fall under a GL policy.

But there's a lot out there. 

Laura Corvo: Yeah, alcohol is always the problem when it comes to holiday parties. It can cause everything from sexual harassment incidents to drunken, racist or other [00:04:00] inappropriate comments. We see sometimes the alcohol induced loose lips causing employees to disclose confidential information. We see employees falling and hurting themselves [and] drunk driving on the way home after the party. 

Victoria Fuller: So many potential claims. I feel like we could dedicate an entire episode to just the topic of alcohol, but we have so many great themes to talk about today, so we can't do that. 

Let's just say this. Employers, if you're listening, if you are supplying alcohol at a holiday party, you need to make sure that somebody is monitoring consumption. If you are not going to monitor consumption, have the party at a bar or a restaurant where there will be a professional bartender, servers, [or] somebody who is monitoring employee consumption. [ Have someone] who will not hesitate to cut off an employee who has had too much, or if they even think the employee may have had too much.

Other tips [00:05:00] would be to limit the amount of alcohol per person. This can be done in several different ways. You can do drink tickets. You could have a limited window for an open bar. The point is not to give employees the opportunity to drink too much and then make bad life choices. 

Anytime you're offering alcohol, you should always, always, always offer food. I also highly recommend non-alcoholic beers, mocktails, not just soda. Things that give the feeling without the alcohol itself. Mocktails and non-alcoholic beers are hugely trendy right now, so strongly consider adding that to the options at your holiday party. 

I think this one is obvious, but I'm going to say it out loud anyway. Visibly intoxicated, employees should not be allowed to drive home from the office holiday party. Full stop. Pay for a ride share. Arrange for a sober [00:06:00] driver to give them a ride, but do not let them drive home from that party. 

Of course, the easiest way to avoid this scenario is to limit consumption at the party itself.

Laura Corvo: Yeah. When it comes to ride shares, the cost of that ride share is nothing compared to the cost of the potential liability if your employees get in an accident on the way home. 

Victoria Fuller: Yeah, it's just not worth it. It's not worth it. 

The other thing that we need to talk about when we talk about holiday parties is religious discrimination. Again, this is probably an obvious one. Make your holiday party inclusive. Call it an end-of-year party. Call it a holiday party. But you should avoid any overt religious symbols and decorations. They do not belong at the office holiday party. 

Laura Corvo: Can you call it a Festivus party, Vicki? 

Victoria Fuller: A Festivus party… you can call it a Festivus party, but only if you have brought the proper poll and arrange for the airing of grievances. But I don't think you want that actually at your workplace [00:07:00] holiday party for all the obvious reasons.

Laura Corvo: Probably not Vicki. I think also when it comes to religious discrimination issues, also think about your menu. You might have to make some adjustments to your menu to accommodate for religious dietary issues. 

Victoria Fuller: Absolutely. There are a number of different things, just top to bottom as you're thinking about your party: what you decorate with, what you call it, what food you're serving. But definitely make it inclusive so that everybody feels like they have a seat at that table.

Okay, so let's talk about the big one, sexual harassment and other types of hostile work environment claims. The punchline to this part of the podcast is “What happens at the holiday party doesn't stay at the holiday party.” There's actually a really good recent sexual harassment case from October that's a good example of this. I want to talk about it for the listeners.

Listeners, I'm going to summarize the allegations in this case. When you're listening, think about which [00:08:00] employment issues you can spot. Laura, you want to do this with me? 

Laura Corvo: Sure. I'm ready. 

Victoria Fuller: Ready? You ready? 

Laura Corvo: I'm ready. 

Victoria Fuller: Okay. In Declet v Corradino & Papa, a former paralegal at this small law firm alleged that at the holiday party in 2024 one of the senior partners groped her and sexually harassed her in front of other staff and attendance at the party. [This] included other supervisory attorneys, which included the other senior attorney. According to the complaint, she was hired in June of 2024, so this would've been her first holiday party at the firm.

She also alleged that employees made comments to her prior to the party, that she would never look at the senior attorneys the same way again after the firm's holiday party. 

Laura Corvo: In other words, Vicki, this was a known problem. 

Victoria Fuller: Yeah, it sure seems like it, from the allegations. The party was allegedly held offsite at a restaurant with a dance floor.

The paralegal alleges that this [00:09:00] senior partner was visibly intoxicated. [He] grinded his body against female employees while dancing on the dance floor, and then went up to plaintiff and asked her if she was quote unquote in or out. When she didn't respond, he called her a lesbian and bisexual. 

Laura Corvo: Oh, 

Victoria Fuller:Oh no, wait. There's more. According to the complaint, he later groped her breasts with his elbows. Afterward, the other senior partner pulled the offending senior partner away from her. 

She then alleges that when she reported the alleged assault and harassment to one of her two supervisors, he responded, “I don't want to know anything.” The paralegal also alleges that after she reported the harassment and assault, the firm's office manager, who was her other direct supervisor, sent a firm wide email that said, in substance, “whatever happens at the holiday party, stays at the holiday party.” [They also] said “the event was fun, as always.” 

Laura Corvo: Yikes.

Victoria Fuller: Yeah, yikes is right. [00:10:00] Okay. To close out the summary, the paralegal alleged that she ultimately resigned as a result of the harassment. In her resignation letter explicitly stated that she was resigning because of the sexual harassment and assault she suffered at the hands of the senior partner. 

Okay, listeners [and] Laura, what issues do we spot here? 

Laura Corvo: Alright, well my head is spinning because there are so many. Let me start by asking you, Vicki, the accused employee is a manager, correct?

Victoria Fuller: Correct. Not just any manager but one of the senior attorneys at the firm. Why is this important? 

Laura Corvo: Well, with respect to his role as a manager, if the paralegal proves her allegations, the firm is going to be on the hook.

Do we know if an investigation was conducted? It doesn't sound like it from what you said, Vicki. 

Victoria Fuller: No, it doesn't look like there was any investigation conducted based on the allegations and the complaint. Laura, tell us why is that important? 

Laura Corvo: Generally speaking, when an employee alleges sexual [00:11:00] harassment, as the employer you want to ensure you conduct a fair and impartial investigation of the allegation.

Here we're you have the offending employee as a member of your senior leadership team, you're probably going to want to get somebody from outside the organization to conduct the investigation. [This is meant] to do a couple of things. One is to ensure that the investigation is free from any presumption of bias and that it's neutral. The other is to make sure that there's no risk of retaliation from that senior manager who is being investigated. 

Victoria Fuller: Agreed. The other problem in general with allegations against members of a senior leadership team is that they tend not to be treated the same as allegations against, say, a lower level manager.

I'm sure you've seen this, Laura. 

Laura Corvo: Definitely. I mean, I think nobody wants to be the one who tells the boss that they did something wrong. 

Victoria Fuller: Yeah. Even the comment from the supervisor that he “didn't want to know anything.” He [was] kind of like,  “I didn't [00:12:00] see it. I didn't hear it.” I think that's pretty typical of what we've seen where we have senior levels of leadership with allegations against them. Is that what you're seeing too? 

Laura Corvo: Yeah, it's the classic fact pattern where somebody who is not at the top of the chain of command but is a supervisor hears about it, [and]they kind of cover their eyes or pretend not to hear it because they don't want to get involved. That's a problem. That's a problem for the organization.

Victoria Fuller: It absolutely is. Let's keep going. Laura [and] our listeners, what else do you spot here? 

Laura Corvo: Well, it looks like this senior attorney had a history of inappropriate behavior with other female employees and other employees knew about it, right? There's the part of the fact pattern where you say that she was kind of warned about what happens at these holiday parties.

Victoria Fuller: Yes. Okay,so from a lawyer's perspective, why does this matter? 

Laura Corvo: Well, it matters because under state and federal discrimination statutes like Title VII employees can recover punitive damages [00:13:00] for particularly egregious acts of discrimination or harassment. When an employer has preexisting knowledge of a problematic employee's harassing behavior, I'd be pretty concerned that the jury would award punitive damages in that situation.

Victoria Fuller: Particularly here too, where there's allegations of touching. I mean, I would be concerned about punitives for sure.

Laura Corvo: Vicki, my guess here, in New Jersey, [is] this case is probably not going to go to trial. It's probably going to be mediated. The mediator is going to understand the punitive damage potential to this case and guide that when that mediator is assessing the damages for both parties. The settlement value is going to be driven up significantly because of that potential for punitive damages.

Victoria Fuller: Completely agree. Okay, more issues. Let's keep going. What else do you see? 

Laura Corvo: Another thing that concerned [00:14:00] me a lot is the fact that this paralegal reported the harassment to one supervisor who, it looks like, refused to take any action. Then the other supervisor who was her direct supervisor sends a firm wide email to the effect of, “What happens in Vegas stays in Vegas. That was fun,” or something like that. 

What this makes me worry about is the potential for punitive damages, as we just discussed, but also the impact on the potential recovery of emotional distress damages. Think about it, this paralegal reports to her supervisor that this happened to her, and the response she gets is, “ What happens in Vegas stays in Vegas.” That could have an impact on her emotional distress award and  put those emotional distress damages well into the six figures and maybe beyond.

Victoria Fuller: I could see the plaintiff's attorney putting that email up on the screen, showing it to the jurors, and the just visual impact of it is going to be striking. 

Laura Corvo: That email is [00:15:00] damning. 

Victoria Fuller: It's not good. It's definitely not good. 

You mentioned emotional distress damages. One of the difficulties in employment law is that's an area of damages that can be hard to value. We talk about garden variety emotional distress, where there are no medicals. It's kind of your ground level, “This really upset me,” type of damages. 

Then there's the type of emotional distress where the employee had to get therapy, got medication, had weight loss, weight gain, [and/ or] got diagnosed with anxiety. There are additional manifestations of that distress. Those types of claims are going to be significantly higher, but it's hard to value exactly how high. Certainly, if I'm looking at that, I'm going to put a high value on that where there is touching, [and] there is this damaging email afterwards supporting senior leadership, so to speak.

I think this is a case that goes to mediation. 

Laura Corvo: Yeah, it's an ugly, ugly fact [00:16:00] pattern. 

Victoria Fuller: I don't think we're done examining this complaint. What else do you see here, Laura?

Laura Corvo: Another potential issue is this employee resigned, which typically is a defense because there's not an adverse employment action because the employee voluntarily quit. In this situation, it looks like the employee resigned because of the unaddressed sexual harassment by a senior manager. It looks to me like this paralegal, if she proves her claim, has a really good shot of establishing she was constructively discharged. 

Victoria Fuller: Can you explain what constructive discharge is for the listeners who don't know?

Laura Corvo: Constructive discharge is where the terms and conditions of employment are so bad that, something like here where we have an unaddressed sexual harassment, a reasonable person in the employee's position is not expected to tolerate it and is expected to [00:17:00] leave. Instead of the employer actively terminating the employee, the employer instead just creates an atmosphere that makes it so intolerable that the employee is left with no choice but to leave.

Victoria Fuller: Laura, just listening to our conversation play back in my head, I'm going to wager that there are some listeners right now[and] some employers who are listening to this [that are] like five seconds from calling their office managers to cancel the office holiday party. Are we being Scrooges here? Is this the message that we're sending, that employers should just cancel their holiday?

Laura Corvo: Yeah, no, Vicki, I don't think that is the message we're trying to send. I don't think anybody should cancel the holiday plans. Planning the holiday party is important, and that planning is really much more than just arranging for food and music and drinks, right? It requires employers and especially senior leadership to really set a tone of what's expected, to set a tone of professionalism. 

You want people to have a good time and to enjoy [00:18:00] themselves and celebrate, but remember you're still at work. Professionalism is something that has to be maintained. It also requires training and reminders to employees, especially your managers and your supervisors that professionalism is what the expectation is at these events.

Victoria Fuller: On that note one thing I think we mentioned at the beginning but didn't really delve into is the issue of privacy and confidentiality. There are so many circumstances where a manager gets drunk, [and] they delve into the office gossip. They reveal confidential information about an employer, about the company.

As you were saying, managers need to be trained. I would think that this would be an obvious one, but it apparently is not just given the number of times it happens. Definitely to train your managers that, “What you say at the party doesn't say at the party. You have to maintain confidentiality of employee matters at the party.”

Laura Corvo: Speaking of training your managers, I think it's interesting because this fact pattern, the one that we just [00:19:00] went over, happened at an office, sanctioned holiday party. I've seen a lot, and I'm sure you've seen a lot, of fact patterns where the sexual harassment occurs in the after party. You know, everyone continues the party at another bar as supervisors.

Even if you're off premises, even if you're outside of the office holiday party and you're continuing the behavior of some place that's completely unsanctioned by the employer, your behavior could still put that employer on the hook for sexual harassment and yourself on the hook for sexual harassment. You've got to really emphasize to your supervisors that when you get that hat as a supervisor, it's something you can't take off, right? Just because you're in a loose setting, just because you're at a bar or drinking or doing whatever, you're still a supervisor. If you're behaving inappropriately towards your subordinates, here comes the sexual harassment claims.

Victoria Fuller:So supervisors have fun, but not so much fun that you'll get a call [00:20:00] from HR at 9:00 AM on Monday. Is that about right? That's right. 

Laura Corvo: That sounds right.

Victoria Fuller:  Okay. Okay. So this is a really engaging conversation, but we do have other end of year topics to cover. So let's move on. 

Let's switch to something where it's a topic we all look forward to at the end of the year, and that's the holiday year-end bonuses.

Laura Corvo:Yeah, that's right. When it comes to bonuses, one thing I want to point out is that employers should know that holiday bonuses, year-end bonuses, and for the most part, bonuses of any kind may be considered wages. [This] means that there are potential tax implications. They should be reported on an employee's W2. All appropriate deductions need to be taken.

Victoria Fuller: Yeah, that's absolutely right. During the holidays, many employers like to play Santa Claus. They reward employees with cash payments or gifts. Just be aware that those cash payments or the [00:21:00] gifts, if they're not di minimis, they may have tax consequences. The punchline here or the point is, consult with your counsel [and] consult with your tax advisor just to make sure that you're not running a foul of any potential tax obligations. 

Laura Corvo: Yeah, it's kind of the “no good deed goes unpunished.” Just  make sure that if you're giving that gift, it doesn't come back to haunt you later. [Make sure] that you just understand how it all works and what the tax implications may or may not be.

Another mistake that I see employers make when it comes to bonuses is not clearly communicating that the bonus is discretionary, not guaranteed. Unless the bonus is part of some sort of guaranteed compensation structure, an employer's bonus policy and any messaging on bonuses, including the bonuses that we give out during the holidays, should really clearly state that the bonuses are being awarded at the employer's sole discretion. If you don't state that the bonus is discretionary, the employees may assume it's [00:22:00] guaranteed, it's part of their wages, and there's the possibility that there is a potential for wage and hour claims if that bonus is not paid. 

This is really important to clarify, especially as some employers are facing financial difficulties or struggling through some difficult economic times. Maybe holiday bonuses or year-end bonuses are not going to be available or are going to be significantly smaller than they were in previous years. Employers should always really reserve the discretion not to issue bonuses if it's not feasible for them to do so.

Victoria Fuller: Absolutely. Just to tack onto that, I just want to clarify, it's not that the word discretionary or discretion is a magic word. It’s that if you don't include it, it calls into question whether it truly is discretionary or not. You don't even want to fight that battle. You don't want to have a claim. You just want to avoid the claim.The easiest way to do that is to be very clear that the bonus is discretionary. 

[00:23:00] So there's a related issue we should talk about as well. Even for those employers who properly communicate that their bonuses are discretionary, they still have to be careful when exercising that discretion, especially when they're choosing to offer bonuses to some employees and not others, or offering more to one employee versus another. In other words, beyond this wage and hour issue, where an employer awards a bonus to one employee but not another, or varies the amount of the award, there could be a discrimination claim that comes out of those bonus allocations. 

Laura Corvo: Yeah, that that's right, Vicki. As a result, the employer really should come up with some sort of neutral and non-discriminatory reason for awarding the bonus, meeting a target or doing something specific that's neutral. You should also document the reason you may be awarding one employee and not another employee a bonus. Make sure that you're [00:24:00] acting consistently as any inconsistencies in how you apply. That neutral reasoning are also going to expose you to discrimination claims.

Vicki, holiday parties and bonuses are the joyous part of employers holidays, but our next topic reductions in force and reorganizations may not be so merry. I, I do love Laura, 

Victoria Fuller: I do love, Laura, how you're throwing in all these holiday themes. I'm here for all of it. 

We're going to talk about reductions in force. We should mention that we did an entire episode on this topic over the summer. Given the current economic conditions, we are starting to see more employers preparing for reductions in force and reorganizations for the first quarter of 2026. If you are listening and you want adeep dive on this conversation, please scroll back to the June 12th, 2025 episode where we do that deep dive conversation.

The one thing I'll say for our [00:25:00] purposes here is, and we said this in this last episode, but it's really important. Don't do this on your own. You need counsel every step of the way. It cannot be done last minute, or at least it can't be done properly last minute. If you are a multi-state employer in particular, you need counsel to advise you on the law in all of the jurisdictions in which you operate, in which you have employees.

If you're listening and you even think you might need to undertake a reduction in force. Even if it doesn't end up happening in the end, just reach out to counsel. Get the advice you need. Make sure that you are ready because this is a huge source of potential liability, particularly where it's not done properly.

Okay, Laura, let's switch to another topic. This is one that can cause employers headaches, as the year winds down, and that is managing sick leave and family and medical leave obligations. 

Laura Corvo: Yeah. Vicki, this is a topic that I think employers struggle with year [00:26:00] round, but I think the new year brings about particular headaches.

First thing I think employers should realize is that there are a lot of new state leave laws that are going to take effect in 2026. Colorado, Delaware, Maine, and Minnesota all have new leave obligations for employers that are taking effect in 2026. You need to know what those are. Maryland also passed a leave law that has been pushed off till 2027, but you should probably be gearing up for it in 2026. In addition, Washington and Vermont have updated their existing leave laws to provide new obligations to employers. If you have employees in those states, get with your counsel and understand what those obligations are, and. Even if you don't have to grapple with a new state law, you should be reviewing your leave laws in the states in which you operate to make sure you're up to date and compliant.

One thing [00:27:00] I see employers struggle with is that many state leave laws have carryover obligations that require employers to carry over, the employee's unused leave or sick time from one calendar year to the next. You should understand how that operates. You should also understand your own policies. If you offer something like vacation or PTO, that's not statutorily mandated, there still may be some carry over obligations.

We have “Use it or Lose it” laws in the number of states that prevent you from not allowing employees to carry over unused time. I think this is a really good opportunity to take a look at that because by getting it wrong [you] can open yourself up to a host of liability. 

Victoria Fuller:Yeah, we've talked about the handbook as a tool, not just for employees, but also for managers and the employers.

This is a great time to update your handbooks, to make sure you do have policies addressing the leave laws in every [00:28:00] state in which you operate or have employees. That's an excellent resource for your HR department or for your managers if there's any question about what their obligations are. If you have not updated your handbook recently, reach out to your council and get going on that so that you're up to date for the new year.

Laura Corvo: Absolutely, Vicki. Handbooks are my favorite topic. Just to carry on with my cheesy holiday themes here, if you haven't updated your handbook in a while, it really should be your first New Year's resolution to tackle that in 2026. 

Victoria Fuller: I like that. 

Laura Corvo: All right. Speaking of New Year's, let's wrap up the year and talk about next year. What's on the horizon in 2026, Vicki? 

Victoria Fuller: I think you and I can probably agree that employers right now are very interested in the potential ramifications from using AI in the workplace. That is not going to slow down for 2026. 

Laura Corvo: Yeah, that's spot on, Vicki. Our last episode on this topic, which was released back on October 16th, had one of the [00:29:00] highest numbers of downloads of any episode to date. We know that employers are struggling and trying to figure this out. We're getting a lot of calls from employers asking about using AI tools for everything from recording meetings and taking notes to screening job applicants. It's important to note that the AI technologies themselves are rapidly evolving and they're kind of far outpacing the regulations around AI, which causes a lot of uncertainty. That uncertainty creates legal risk. 

It's really why we strongly advise you to consult with counsel. If you don't have an AI policy at this point, you probably should get one. If you put an AI policy together a year or a year and a half ago, it probably makes sense to update it because a lot has changed in this area. It's really dynamic. 

Victoria Fuller: Absolutely right. Transitioning from one type of policy to another type of policy, I [00:30:00] would note here that many insurers are currently looking closer at their policies and looking at adding exclusions or otherwise modifying the policy language to address this additional risk presented by AI. 

Employers should not just assume that AI related risk is going to be covered under their EPL policy. They should be taking a very close look at renewal. [They should look] at whether there are amendments, exclusions [or] any additional terms that address AI. Do they need to purchase additional coverage for AI related risks?

This is all in the development stage right now. Come 2026, employers really need to pay attention to this. 

Laura Corvo: Absolutely. 

Victoria Fuller: A few minutes ago we also discussed the acceleration of layoffs and RIFs that are happening right now as we're moving into 2026. What do we know follows directly on the heels of layoffs and RIFs? [It’s] discrimination claims. [00:31:00] 

Particularly in this still unsettled DEI environment, I would expect for 2026 we're going to continue to see an increase in both traditional and reverse discrimination claims. Employers who do not have EPL insurance should absolutely get it. These types of claims can take years to resolve. They can be expensive, as we talked about. They can involve punitive damages. They can involve emotional distress damages. They can involve years of legal fees.

You want to make sure you have either sufficient self-insurance or have an insurance policy to stand behind you if you get a claim. 

Laura Corvo: Yeah, I agree with that, wholeheartedly, Vicki. We should also talk about leave and accommodation issues. 

Victoria Fuller: Oh yeah, absolutely. 

Laura Corvo: I think post pandemic, we saw a lot of failure to accommodate claims arising out of work from home and intermittently as related to mental health issues like anxiety and depression. I think some of that has slowed down, but [00:32:00] protected leave and failure to accommodate are evergreen issues for employers. 

I expect we will see employees who are included in the RIFs that we've been talking about, who are out on leave, bringing potential discrimination claims against their employers because they were terminated as part of that RIF. 

I expect we're going to see some employers struggle with trying to manage multi-state workforces. While I don't think we're going to see any major leave legislations come out of the federal level, as I mentioned earlier, a number of states have passed new leave laws, and that trend is going to continue. We’re going to see employers continue to struggle to manage the varying state requirements when it comes to leave laws as we head into 2026.

Victoria Fuller: I think that's right. The other thing about leave claims is they are very fact specific. They're not usually amenable to resolution through an early motion. They can be very [00:33:00] sticky. With any leave situation that is complicated, please get your counsel involved to advise you because this is one of those areas where it's just so nuanced and it's difficult to manage even when you are an experienced HR professional.

Laura Corvo: And as you said, Vicki, make sure you've got those EPLI policies in place. When you get hit with one of those claims, it's very, very expensive. 

Victoria Fuller: Absolutely, Laura. I can't believe this, but we're actually out of time already. 

Before we close out, I do want to mention for our listeners that you and I will be at the PLUS EPL Symposium in New York City in March next year. If you're listening to this and you're going to be attending, please come and say, “Hello.” We'd love to meet you. Come say, “Hi” to us. 

Once again, we would like to thank all of our listeners for joining us here on The Employment Law Counselor podcast, where we talk about the risks facing employers today and discuss how better mitigation equals less litigation. If you enjoyed this episode, please leave us a five-star review. Tell your friends and subscribe to the [00:34:00] podcast. For more information on this and many other topics, please visit the White and Williams website at www.whiteandwilliams.com, or you can visit our blog and learn more about the firm. 

Until next time, happy holidays and happy New Year everyone.

PLUS Staff: Thank you for listening to this episode of The Employment Law Counselor. If you haven't checked out the previous episodes, make sure to give those a listen and check back in in the next few weeks for the next episode. If you have an idea for a future PLUS podcast, you can visit the PLUS website and complete the Content Idea Form.