Business Expense Reimbursement Not Limited by EPLI "Wage-and-Hour" Exclusion
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On November 14, 2016, a federal judge in California denied summary judgment to Hanover Insurance Co. (Hanover), finding that class claims alleging a failure to reimburse reasonable business expenses were not excluded by a "wage-and-hour" exclusion contained in EPLI policies issued by Hanover. The lawsuit, brought by a former student of the Bellus Academy beauty school, alleged that Poway Academy (the owner of Bellus) and Beauty Boutique, Inc. (BBI) (operator of two other schools under the "Bellus" name), failed to compensate students for working on paying clients at an onsite salon and also failed to reimburse them for out-of-pocket costs to purchase necessary supplies. The lawsuit alleged a variety of wage-related claims. The lawsuit also alleged that the schools failed to reimburse necessary business expenses in violation of Section 2802 of the California Labor Code.

Hanover initially agreed to defend the schools under a reservation of rights, but then sued the schools for a finding that coverage was barred for all of the claims against them. The court found, however, that while the claims alleging a failure to pay minimum wages and overtime would be barred by the policies' "wage-and-hour" exclusions, Section 2802 is not a wage-and-hour law. Although the statute functions to prevent employers from offloading expenses onto their employees, it also has other functions, such as providing for indemnification for third-party suits. Thus, the court found that Section 2802 was not a wage-and-hour law, per se, and thus the alleged failure to reimburse claim was not within the scope of the policies' "wage-and-hour" exclusions.

The Poway Academy decision is a significant reminder for employers facing "wage and hour" claims that each claim must be assessed on its own merits, and that the mere presence of a "wage-and-hour" claim does not necessarily mean that the entire claim or lawsuit is excluded from coverage by a "wage-and-hour" exclusion. In fact, as was the case in Poway Academy, the presence of just one potentially covered claim required the insurer to defend the entire litigation (subject, of course, to an equitable allocation among covered and non-covered claims).

The insurance coverage attorneys at Hunton & Williams LLP are available to help employers and other policyholders secure the maximum available coverage, including defense coverage under duty to defend policies.

  • Partner

    Mike is a Legal 500 and Chambers USA-ranked lawyer with more than 25 years of experience litigating insurance disputes and advising clients on insurance coverage matters.

    Mike Levine is a partner in the firm’s Washington, DC ...


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