--- title: "Navigating Layoffs: How to Mitigate EPLI Risks" description: Layoffs can open the door for litigation and employment practices liability insurance (EPLI) issues. 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You are leaving risk-strategies.com By accessing this link, you will be leaving Risk Strategies website and entering a website hosted by another party. Please be advised that you will no longer be subject to, or under the protection of, the privacy and security policies of Risk Strategies website. We encourage you to read and evaluate the privacy and security policies of the site you are entering, which may be different than those of Risk Strategies. OK Cancel [![Connect with Our Team](https://no-cache.hubspot.com/cta/default/20256628/f1d83adb-981f-4b85-93a6-7a46077d7309.png)](https://cta-redirect.hubspot.com/cta/redirect/20256628/f1d83adb-981f-4b85-93a6-7a46077d7309) April 27, 2023 # Navigating Layoffs: How to Mitigate EPLI Risks [ Executive Liability Insurance ](https://www.risk-strategies.com/blog/tag/executive-liability-insurance) 3 min read [ Donovan Nowell, Management Liability Practice Leader ](https://www.risk-strategies.com/blog/author/donovan-nowell-management-liability-practice-leader) - [Facebook ](https://www.facebook.com/sharer/sharer.php?u=https%3A%2F%2Fwww.risk-strategies.com%2Fblog%2Fnavigating-layoffs-epli) - [X (Twitter) ](https://x.com/intent/post?url=https%3A%2F%2Fwww.risk-strategies.com%2Fblog%2Fnavigating-layoffs-epli&text=Navigating+Layoffs%3A+How+to+Mitigate+EPLI+Risks) - [LinkedIn ](https://www.linkedin.com/shareArticle?mini=true&url=https%3A%2F%2Fwww.risk-strategies.com%2Fblog%2Fnavigating-layoffs-epli&title=Navigating%20Layoffs%3A%20How%20to%20Mitigate%20EPLI%20Risks&summary=Layoffs+can+open+the+door+for+litigation+and+employment+practices+liability+insurance+%28EPLI%29+issues.+Learn+how+you+can+mitigate+the+risks.&source=) - [Email ](mailto:?subject=Navigating%20Layoffs%3A%20How%20to%20Mitigate%20EPLI%20Risks&body=https%3A%2F%2Fwww.risk-strategies.com%2Fblog%2Fnavigating-layoffs-epli) ![Navigating Layoffs: How to Mitigate EPLI Risks](https://www.risk-strategies.com/hs-fs/hubfs/ML%20blog%20post%20image%204-27.jpg?width=640&height=300&name=ML%20blog%20post%20image%204-27.jpg) - [Facebook ](https://www.facebook.com/sharer/sharer.php?u=https%3A%2F%2Fwww.risk-strategies.com%2Fblog%2Fnavigating-layoffs-epli) - [X (Twitter) ](https://x.com/intent/post?url=https%3A%2F%2Fwww.risk-strategies.com%2Fblog%2Fnavigating-layoffs-epli&text=Navigating+Layoffs%3A+How+to+Mitigate+EPLI+Risks) - [LinkedIn ](https://www.linkedin.com/shareArticle?mini=true&url=https%3A%2F%2Fwww.risk-strategies.com%2Fblog%2Fnavigating-layoffs-epli&title=Navigating%20Layoffs%3A%20How%20to%20Mitigate%20EPLI%20Risks&summary=Layoffs+can+open+the+door+for+litigation+and+employment+practices+liability+insurance+%28EPLI%29+issues.+Learn+how+you+can+mitigate+the+risks.&source=) - [Email ](mailto:?subject=Navigating%20Layoffs%3A%20How%20to%20Mitigate%20EPLI%20Risks&body=https%3A%2F%2Fwww.risk-strategies.com%2Fblog%2Fnavigating-layoffs-epli) Ongoing layoffs in the high-tech sector have increased speculation that a recession is imminent. Despite a seemingly strong job market and continued low unemployment, the decelerating economy may lead to more downsizing. Organizations that need to lay off employees must make difficult decisions while ensuring a smooth transition. Becoming well-versed in the compliance requirements of the [Worker Adjustment and Retraining Notification (WARN) Act](https://www.dol.gov/agencies/eta/layoffs/warn) can help employers mitigate potential litigation and EPLI issues during, and beyond, the layoff process. ## WARN Act Considerations The WARN Act mandates that employers provide a sixty-day notice period before closings or mass layoffs. Public announcements and subsequent news coverage are not enough. The law also requires notification to affected workers or their representatives, state officials, and local elected officials. Organizations need to consider each layoff period’s timing to ensure the sixty-day requirement is met for every separation period. This minimizes potential legal issues arising from staggered layoffs. Additionally, employers should provide support for worker training and adjustment as part of the employee transition to new employment. Insurance usually does not cover WARN ACT non-compliance claims, but some carriers offer sub-limits with higher retentions. Employers may want to request a carve-back for retaliation (a carve-back is language in an insurance policy that provides coverage for something that otherwise is excluded). ## Use Effective Communication Throughout the Process Communicating clearly when laying off employees helps reduce the possibility of future EPLI-related lawsuits. Employers need to explain why the layoff is necessary and how they chose which employees to let go. They also should spell out what options the affected employees have – such as severance pay, health care, and continuation of benefits. This ensures the process is fair and prevents misunderstandings and legal actions. Additionally, giving employees the opportunity to ask questions and provide feedback enables employers to address concerns early on. By effectively communicating during layoffs, employers can minimize negative impacts and protect the organization’s reputation. ## Mitigate any Possibility of Discrimination Prior to layoffs, an organization needs to review the selected employees for any adverse impact on a protected class, which includes race, gender, age, religion, nationality, or disability. If this analysis shows a protected class will be disproportionately affected, adjusting the selection criteria can help prevent discrimination claims. Employees can claim EPLI-related discrimination if they are in a protected class. They also can claim unlawful termination due to a hostile work environment, harassment, or retaliation based on their protected class. They will need evidence such as discriminatory or retaliatory statements, actions, or inconsistencies in the employer’s layoff actions. ## Be Consistent and Methodical Diligent, documented efforts to promote a fair workplace can reduce the risk of grievances and lawsuits. Having a consistent, written procedure for layoffs helps combat wrongful termination or discrimination claims. These measures can help demonstrate that the employer's decisions were based on legitimate and nondiscriminatory factors. If companies conduct layoffs inconsistently or in a disorganized manner, they can create an appearance of discrimination. Even if that was not their intent, their actions might lead to a costly litigation process. Employers with clear layoff policies and procedures, who can demonstrate a fair, transparent, and nondiscriminatory process, reduce their litigation risk. Additionally, they can show through their documentation why they needed a layoff and their selection criteria. This will give them the evidence to show the layoff was not motivated by discriminatory or retaliatory intent. ## Ensuring a Smooth Transition To demonstrate goodwill, organizations should ensure their severance packages are substantial enough to help employees transition to their next chapter. However, even with generous severance packages, former employees may still retaliate with litigation. Getting proactive legal and insurance counsel can mitigate these potential EPLI risks. *Want to learn more?* *Find me on LinkedIn, [here](https://www.linkedin.com/in/donovan-nowell-50328511/).* *Connect with the Risk Strategies Management Liability team at [MLPG@risk-strategies.com](mailto:MLPG@risk-strategies.com).* *Read about [cybersecurity implications of layoffs](https://www.risk-strategies.com/blog/5-tips-for-managing-cyber-costs-in-2023).* **About the author** Donovan Nowell leads the Risk Strategies Management Liability Practice. He specializes in designing programs for executive liability, directors and officers liability, employment practices liability, professional liability, fiduciary liability, and crime insurance. The contents of this article are for general informational purposes only and Risk Strategies Company makes no representation or warranty of any kind, express or implied, regarding the accuracy or completeness of any information contained herein. Any recommendations contained herein are intended to provide insight based on currently available information for consideration and should be vetted against applicable legal and business needs before application to a specific client.  [Subscribe](https://www.risk-strategies.com/blog/navigating-layoffs-epli#subscribe) ### Subscribe via Email executive-liability-insurance ### Related Posts [See all posts](https://www.risk-strategies.com/blog) ![](https://www.risk-strategies.com/hs-fs/hubfs/Colleagues-at-business-meeting-in-conference-room-scene.jpg?width=450&height=250&name=Colleagues-at-business-meeting-in-conference-room-scene.jpg) [ Executive Liability Insurance ](https://www.risk-strategies.com/blog/tag/executive-liability-insurance) [ Future of Risk ](https://www.risk-strategies.com/blog/tag/future-of-risk) 5 min read July 15, 2025 #### [ The Future of Risk: How Demographics, AI, and RTO Are Reshaping Executive Liability ](https://www.risk-strategies.com/blog/future-of-risk-how-demographics-ai-rto-effect-executive-liability) Editor’s note: This article is the fourth installment in the 2025 Future of Risk series, which … [ Read article ](https://www.risk-strategies.com/blog/future-of-risk-how-demographics-ai-rto-effect-executive-liability)