Practical Approaches to Phishing Threats

From the September 1, 2016 PLUS webinar “Quite a Catch! Phishing for ‘Social Engineering’ Fraud,” Peter Hedberg of Hiscox and Jonathan Meer discuss practical approaches to reduce the threat of “phishing.”

For much more on cyber risk and trends make sure to attend next week’s PLUS Cyber Liability Symposium… there’s still time to register!

PLUS members can view this entire session in the PLUS Multimedia Library.

Eastern Chapter Discusses Employment, Fiduciary Exposures

The Eastern Chapter hosted an educational and networking event, New Rules, New Regulations, New Litigation: An Update on Employment Practices & Fiduciary Liability Exposures, on September 13 in New York City.

More than 100 industry professionals attended this great event, and we received some excellent photos from the event. Thanks to everyone who took part, and enjoy!

You Snooze You Sometimes Lose: Court Enforces 6 Month Statute of Limitations with Respect to Section 1981 Claim But Not with Respect to Title VII Claim

Did you know that an agreement shortening the time within which to bring an employment law claim may be enforceable?  Indeed, in Order of United Commercial Travelers of Am. v. Wolfe, 331 U.S. 586, 608, 67 S. Ct. 1355, 91 L. Ed. 1687 (1947), the Supreme Court stated with respect to contracts generally that “in the absence of a controlling statute to the contrary, a provision in a contract may validly limit, between the parties, the time for bringing an action … to a period less than that prescribed in the general statute of limitations, [if] the shorter period [is] a reasonable period.”  This principle has been applied and enforced in the employment law context.

For example, recently in Njang v. Whitestone Grp., Inc., 2016 U.S. Dist. LEXIS 65370, 129 Fair Empl. Prac. Cas. (BNA) 362 (D.D.C. May 18, 2016), plaintiff filed an action alleging race discrimination in violation of both Section 1981 and Title VII.  In its motion for summary judgment, the former employer argued that plaintiff’s claims — which were filed more than two years after the termination — were time barred because the employment contract required the employee “to file all claims or lawsuits in any way relating to employment with the Company no more than six months after the date of the employment action that is the subject of the claim or lawsuit.”  Id. at *5.

The court held that the shorter limitation period was enforceable with respect to the Section 1981 claim but not with respect to the Title VII claim.  With respect to the Section 1981 claim, the court relied on precedent in finding that “six months is a reasonable period of time . . . both because nothing within Section 1981 indicates that Congress intended for a longer window to bring such a claim, and also because the statute lacks other features that would make filing a claim within six months impracticable, such as an administrative exhaustion requirement.”  Id. at *15.

By contrast, the court held that Title VII’s time-consuming administrative requirements, including (i) plaintiff’s need to first file a charge with the EEOC within 180 days after the alleged unlawful conduct, (ii) the EEOC’s investigation of the charge, and (iii) the EEOC’s issuance of a right to sue letter, make a 6-month limitation period unreasonable.  Id. at **18-19.  As the court in Njang explained, “merely by complying with the administrative exhaustion requirements of Title VII, plaintiffs are typically precluded from bringing their claims in court within six months of the challenged conduct, which means that a six-month limitations period has the practical effect of waiving employees’ substantive rights under Title VII.”  Id. at *20.

As a practical matter, employers should consider implementing a clause in their employment contracts and employee handbooks reducing the statute of limitations to a shorter, yet still “reasonable” time.  While 6 months might be too short a period – particularly given the administrative requirements of Title VII – a 1-year period might very well pass muster as a reasonable period of time.