As local coronavirus pandemic-related stay-at-home orders expire or are withdrawn over the coming weeks, employees will be returning to the workplace. According to a recent blog post, a “wave of workplace class actions” could follow in connection with the return to work. In an April 26, 2020 blog post on the Workplace Class Action Blog entitled “The Coming Surge of Workplace Class Actions in the Wake of COVID-19” (here), Gerald Maatman and Jennifer Riley of the Seyfarth Shaw law firm predict a surge of workplace lawsuits “in several key areas such as discrimination and workplace bias, wage & hour, as well as on the health & safety front.”
In the area of discrimination and workplace bias, the authors suggest that employers should be wary of potential class actions “for alleged discrimination or bias against Asian-Americans and other protected groups.” The authors noted that in March 2020, the FBI issued a warning of a potential surge in hate crimes against Asian-American. On March 30, 2020, the Chair of the EEOC issued a statement warning employers to watch for mistreatment or harassment of Asian-Americans. The authors quote an advocacy group as saying that there have been over 1,500 reports of coronavirus discrimination against Asian-Americans. As the authors note, “these issues are not likely to disappear in the near term.”
The authors also note that both recent mass lay-offs and upcoming mass re-hirings are also apt to lead to potential discrimination claims. Allegations may include assertions that the job actions had a disparate impact on protected groups or failed to comply with WARN Act requirements. As employers re-open workplaces and make decisions about which employees to bring back to work, allegations may arise, for example that the employer is bringing back disproportionately higher numbers of younger workers on the theory that older workers are more susceptible to COVID-19. Similarly, efforts to target re-hiring toward a protected group could also result in claims.
Wage & Hour Issues
With respect to Wage & Hour issues, the authors note job actions in response to the pandemic are likely to result in claims. Efforts to keep employees working during the pandemic are “apt to fuel misclassification and off-the-clock claims.” Employers who cut wages or re-shuffle work to exempt employees could “face claims that they failed to comply with notice requirements or impacted exempt status.” Employers who moved their workforce to stay-at-home arrangements “are likely to face claims that they failed to appropriately track or compensate all work hours.” As employees return to work, further Wage & Hour claims may results as employers “impose new requirements relative to borrowing or returning necessary equipment, participating in health screenings, or modifying work schedules.”
Health & Safety Issues
The authors suggest that just as cruise line employees have already filed lawsuits alleging that employers failed to take appropriate actions to protect employees and customers, employees returning to work are likely to raise allegations that employers failed to take appropriate actions to address safety concerns and ensure employees’ health. Return to work actions that “fail to account for workplace safety or allow for reasonable accommodations are “apt to face scrutiny.” Employers should “take care to ensure compliance with directives from the CDC and OSHA, as well as state and local authorities” and develop a “plan to maintaining social distancing and similar mandates,” such as by adding screens, staggering shifts and modifying scheduled.
The authors conclude that the economic dislocations fueled by the pandemic are “likely to spark a surge of workplace class actions.” As a result, as employers prepare to return to work, they should take “pro-active steps” to try to reduce their risks. These steps include take active measures through HR processes and training to try to eliminate discriminatory actions in the workplace. Employers should also take active measures to ensure compliance with Wage & Hour requirements, among other things by “tracking compensable time, ensuring sign off and acknowledgement of remote work hours, and strictly complying with the technicalities of state and local laws.”
Stanford Law School Coronavirus Law Firm Memo Database: As readers undoubtedly have noticed, law firms have been on overdrive during the current public health crisis in issuing memos and client alerts about the pandemic. The sheer volume of memos has made it difficult to keep track and to keep up. Fortunately, Stanford Law School is maintaining a database of COVID 19-related law firm memos. The database, which can be found here, is organized chronologically by memo date, and searchable by keywords. The site also maintains a roster of links to the law firms’ website COVID-19 resource pages.