What Employers Need To Do To Take Cover
By Robert G. Brody and Mark J. Taglia
The Workplace Policy Institute’s recently released report shows that as of the end of August there have been nearly 600 employee-initiated lawsuits (including 70 class action) as a result of COVID-19. Most of these cases have centered around terminations, exposure to the virus, and other workplace health and safety issues. In the coming months, more suits will follow on the basis of sick leave, whistleblower complaints, disability accommodations and violations of the Worker Adjustment and Retraining Notification (“WARN”) Act resulting from mass layoffs as the pandemic continues.
Until the United States has widespread inoculation of American workers with a COVID-19 vaccine, we see no end in sight to this uptick in lawsuits. As such, employers need to be extra vigilant in their approach to employees during these uncertain challenging times.
Many of these initial COVID-19 related lawsuits have been brought against employers providing healthcare services. This makes sense as these organizations were for the most part the largest employers that remained open during the start of the pandemic. We anticipate employers from other industry sectors will be next as the economy continues to reopen and employees return to work.
To date, the most common COVID-19 related claims have been for:
- Wrongful termination
- Breach of contract
- Retaliation
- Workplace safety
- Bias based on disability/age
- Violations of various federal and state leave laws
As more employers come back online, new litigations brought by employees will be directed at wage and hour claims and violations of the WARN Act.
What you should consider
Wage and hour concerns include the misclassification of employees stemming from the growing number of “Gig workers” entering the economy because their more traditional jobs have been eliminated as a result of the pandemic. Courts will be faced with identifying the proper classification of these individuals as independent contractors or employees (see previous Brody and Associate article on this topic). The liability for misclassification can be dramatic.
Other wage and hour concerns include:
- Time keeping obligations (e.g., failure to properly track work time and specifically meal and rest breaks, for employees working from home during the pandemic);
- Reimbursement for certain expenses an employee incurs while working at home when the incurred expense would cause the employee’s wage to drop below minimum wage;
- Reporting time pay: certain jurisdictions require reporting time pay for employees who report to work and are sent home before the end of a shift and even when no work is performed at all during a scheduled shift. Issues regarding reporting time pay may also arise at the start of furloughs or an unforeseen office closure resulting from the pandemic; and
- Compensable work time and the compensability of pre-shift activities incurred as a result of the pandemic (e.g. temperature checks and other health screening activities).
Under the WARN Act and corresponding state laws, employers are required to give employees advance notice of mass layoffs and closures. During the outbreak of a pandemic such as COVID-19 this timely notice obligation can be difficult, if not impossible, for employers to meet.
The WARN Act does provide exceptions to this notice requirement for business circumstances that were not reasonably foreseeable at the time notice was to be provided. This exception may give cover to employers who failed to give timely notice to employees at the onset of the pandemic; however, the valid use of this exception loses some merit as the pandemic continues and businesses are able to give thoughtful planning to what their future workforce will look like. Thus failure to provide timely notice is a likely focus for disgruntled employees.
Robert G. Brody is Founder and Managing Member and Mark J. Taglia is Counsel at the law firm Brody and Associates, LLC. rbrody@brodyandassociates.com and mtaglia@brodyandassociates.com (203) 454-0560.