Hybrid and remote work arrangements have produced a distinct category of employment practices liability (EPL) claims, according to Nicholas Boutilier, a commercial account executive at Mitch Insurance's Kingston branch in Ontario. In remarks reported by Insurance Business on Monday, Boutilier said artificial intelligence is also making it easier for employees to bring such claims, and that the gig economy has added further pressure.
Boutilier told the publication that employment exposures shift whenever business practices undergo cultural change, and that the past decade has produced several such shifts at once.
Why it matters
Employment practices liability insurance covers employers against claims brought by workers, and Boutilier's assessment suggests the conditions that generate those claims have broadened. He identified three developments driving the change: the move to hybrid and remote work, the arrival of AI tools, and the growth of gig work alongside a culture of frequent job changes.
For smaller employers in particular, the absence of written rules on where and how staff work appears to be a central vulnerability.
Reprisal claims lead the shift
The first claim type to rise, according to Boutilier, was reprisal — allegations that a management or employment practice was used to retaliate against an individual employee.
He said hybrid and work-from-home models opened a new avenue for such allegations, because staff now have an additional employment factor they can cite when arguing that a policy change was aimed at them personally.
Boutilier said the exposure is highest for small and mid-sized employers that have not committed their remote work rules to writing. Where an organisation sets out when, how and how often employees may work from home, and applies that framework consistently, the risk of EPL claims in a hybrid model is substantially reduced, he said.
He noted that the pandemic caught even employers with established human resources functions unprepared, and that few anticipated having to later reverse remote work arrangements.
Accommodation disputes and virtual conduct
A second area of concern is accommodation disputes, including disagreements over whether a requested accommodation is genuinely needed or whether an employer can reasonably refuse it on hardship grounds.
Boutilier described the difficulty facing an employer that wants staff back in the office when a long-serving employee has relocated beyond commuting distance. In such cases, he said, workers can point to fuel costs, travel time and other expenses or inconveniences as evidence of hardship that may amount to unfair treatment.
He also flagged conduct in virtual workplaces. Remote settings can lead employees and managers to relax their guard, he said, which may result in unprofessional behaviour on video calls. He gave examples ranging from unsuitable clothing to staff joining meetings from leisure settings, while noting that the employment consequences depend on the circumstances. Boutilier said such incidents are occurring and represent a genuine exposure, even where they have drawn amusement or shock.
He further suggested the insurance industry has reason to discuss productivity tracking tools, pointing to questions of privacy, acceptable workplace practice and possible misuse of monitoring functions.
AI as an aggravating factor
Boutilier described AI as a significant aggravating factor for EPL exposure. Before AI, remote work and the gig economy took hold, he said, an employee weighing a claim faced substantial barriers: the time involved, the effort required, difficulty obtaining information and concerns about stability.
AI addresses many of those obstacles, he said, giving individuals considerably more leverage.
The technology also creates risk on the employer's side. Boutilier said he has worked with staffing agencies adopting AI models to support client hiring, and warned that employers using such algorithms directly or through an outsourced provider face exposure. Unchecked biases and errors in those systems can lead to employment liability, he said.
Weaker workplace ties
The third shift Boutilier identified is the combination of gig work and frequent job changes, which he said has loosened the bond between employers and staff and left employees more inclined to pursue legal action.
He linked the trend to the shrinking of the middle class from the 1990s through the 2020s, arguing that loyalty, community and workplace culture have suffered as a result. Today's workforce shows less loyalty but has greater access to information, he said, and individuals hold more power than before.
Employers without clear remote work policies, and those adopting AI hiring tools without checks, are likely to face the sharpest scrutiny as these claim patterns develop.
