The coronavirus pandemic has caused widespread disruption in the United States, with governments at all levels grappling between the health and safety of their citizens and the need to keep the economy running. Business owners are eager to keep their companies operational and are contending with complying with all types of federal, state, and local regulations. In addition to facing the pandemic’s impact on the economy and their employees’ safety, businesses are now taking yet another hit: claims and lawsuits.
What Are Some of the Reasons for Employment Claims and Lawsuits Related to COVID-19?
Some claims have been related to the Americans with Disabilities Act (ADA), which requires reasonable accommodation and non-discrimination based on disability, as well as rules about employer medical examinations and inquiries.
Various discrimination claims have been connected to Title VII of the Civil Rights Act which prohibits discrimination based on race, color, national origin, religion and sex. Employers should be especially alert to harassing and discriminating remarks against employees who are Asian or perceived to be Asian due to the origin of the coronavirus.
Other claims have been linked to the Age Discrimination in Employment Act (ADEA) which prohibits discrimination against individuals age 40 and older. For example, even if motivated by concern for the employee, employers should not prevent older workers from returning to the workplace if they wish to do so.
The most momentous paid leave law in response to COVID-19 has been the federal Families First Coronavirus Response Act (FFCRA). It took effect on April 1st and while there was an initial grace period of non-enforcement for employers that made good faith compliance efforts, the Department of Labor has since started to follow up with some employers to determine their compliance with the law.
Other cities and states have passed new paid leave legislation in response to the crisis. New York and Colorado were two of these states. Employees are raising claims that they were denied leave that they were entitled to, or retaliated against for taking leave.
Reduction in Force
Lawsuits have made their way to the courts alleging wrongful termination after many businesses nationwide had to conduct a reduction in force due to COVID-19. Which employees stayed and which employees didn’t, as well as which employees are recalled back to work and which employees are not, can be the basis for litigation. For instance, Los Angeles, California has adopted specific COVID-19 right of recall and worker-retention ordinances.
Another trend in claims pertains to the Worker Adjustment and Retraining Notification (WARN) Act (click here for a helpful FAQ). This federal law imposes a notice of obligation on covered employers who implement a “plant closing” or “mass layoff” in certain situations, even when they are forced to do so for economic reasons. Even though COVID-19 was an unforeseeable business circumstance, an employer should provide as much notice to affected employees as possible. WARN also has “lookback” provisions so while it may not apply in the beginning, employers should keep track of how many employees are laid off over time to see if that triggers WARN or state mini-WARN obligations.
Wage and Hour
While these types of claims have always been prevalent, the lack of standardized operating controls with remote work can lead to missed meal and rest breaks which are required in some states. Reductions in salary or hours can lead to claims for employees exempt from overtime requirements if they are not handled properly. Employers must also be careful when working with limited staff and reallocating non-exempt employee duties to exempt employees which may jeopardize their exempt status.
Whistleblower claims are increasing now in considerable measure as they relate to employees raising concerns about health and safety. Employees are alleging that they were punished with discipline or discharged for bringing forward concerns about working conditions and OSHA violations. Employees are also allowed to engage in protected concerted activity to address or improve working conditions per the National Labor Relations Act (NLRA) whether they are in a union or not.
In addition to the noted reasons above, retaliation has been the number one claim at the EEOC for the last several years. Employers can have multiple reasons in a claim or lawsuit – wage and hour, discrimination and then retaliation on top of that.
Are These Claims and Lawsuits Concentrated in Certain States?
Much of the litigation right now is coming out of California, followed by Florida and New Jersey. A COVID-19 Litigation Tracker has been made available with data pertaining specifically to employment litigation. These lawsuits are happening at federal, state, and local levels.
What Can I Do to Protect My Business?
There are steps employers can take to mitigate employment liability:
- Understand the various employment laws and regulations you must follow with your workforce
- Remind employees of your policies, such as discrimination and harassment prevention, as well as inform them of benefits available to them, such as paid leave (click here for the FFCRA notice)
- Train supervisors on how to respond to and escalate employee requests and concerns
- Take employee complaints seriously even if you believe the issue raised may be frivolous
- Document the reasons for your employment decisions and actions you have taken to investigate and address any employee concerns
- Have a written safety plan on steps you are taking to comply with health and safety requirements and best practices during this pandemic
- Consult with an HR professional or legal counsel as needed and before taking adverse employment action against an employee
The uphill battle for business owners continues with rising litigation related to COVID-19, and now more than ever, it is crucial business owners are proactive and diligent, and take the necessary steps to avoid costly legal trouble.
If you are a client of FrankCrum, contact us for guidance on how to protect your business related to COVID-19 litigation.