Let the Pandemic Employment Lawsuits Begin!
In addition to dealing with the “new normal” of shuttered workplaces, remote employees, layoffs, pay reductions, and new state and federal legislation seemingly on a daily basis, employers should anticipate a torrent of employment-related lawsuits flowing from the COVID-19 pandemic. From wage and hour violations, to discrimination claims, to whistleblower claims, to health and safety allegations, to even wrongful death suits, employers already are beginning to see pandemic-driven lawsuits. Moreover, this initial wave of lawsuits is only the tip of the iceberg, as economic downturns often spike employee claims. This spate of COVID-19 related litigation underscores the need for employers to be vigilant about legal compliance, even in the fast-paced barrage of changes occurring now.
WAGE AND HOUR VIOLATIONS
A flood of litigation is expected to arise in the wage and hour arena following reductions in pay and hours, furloughs and layoffs. For example, on April 7, stylists working for Hair Cuttery in 850 stores in 16 states—alleging that they did not receive their final paychecks when the company closed operations due to COVID-19—filed a wage and hour collective action in federal court in New Jersey. The president and CEO, both named as individual defendants, reportedly sent a video to employees telling them that they hoped to pay the employees after they received federal pandemic relief funding or when they resumed operations.
It is critical that employers pay employees for all hours worked prior to any layoffs or cessation of operations. Not only is the employer liable for such wage payments—treble damages are available under New Jersey’s wage payment law—but there can be individual liability for responsible individuals under the Fair Labor Standards Act and state wage and hour law for failure to make such wage payments.
In another wage action, the American Federation of Government Employees and employees from several federal agencies have sued the federal government for hazard pay for being required to work with or in close proximity to objects, surfaces, and individuals infected with the COVID-19 virus. The complaint lists examples of employees in the Bureau of Prisons, the Department of Agriculture, and the Department of Veterans Affairs who worked in close proximity to surfaces or individuals infected with the virus without sufficient personal protective equipment. The workers seek hazard and environmental pay dating back to January 2020.
Two employees claiming that they were fired after complaining that the employer was not complying with state-ordered COVID-19 precautions, including enforcing social distancing and adequately sanitizing surfaces, filed a wrongful discharge suit in Kentucky against their employer. The complaint alleges that the employer dismissed employee concerns by stating that the virus is “not that big of an issue” and that everyone was “overreacting.” Lawsuits such as this one highlight the need for employers to pay careful attention to executive and public health orders detailing precautionary workplace measures.
In Michigan, female police dispatchers sued the city over an allegedly discriminatory policy that existed before the COVID-19 epidemic, but was exacerbated by the increased safety concerns caused by the outbreak. Six female police dispatchers filed a sexual discrimination lawsuit, claiming that they were forced to pat down female arrestees when no female police officers were available, but that male dispatchers were not similarly required to pat down male arrestees. The female dispatchers claimed that the task was increasingly dangerous due to the COVID-19 pandemic and that they have not been provided with sufficient protective equipment.
WRONGFUL DEATH CLAIMS
On April 6, 2020, the family of a deceased Walmart employee brought a wrongful death suit against the retail giant, alleging that substandard safety and cleanliness protocols at a store in Illinois exposed the employee to COVID-19. The employee ultimately died of alleged complications related to the virus. The complaint alleges that Walmart failed to sanitize the store, implement and enforce social distances policies, provide protective equipment, and prevent symptomatic employees from continuing to report to work. The complaint further alleges that Walmart failed to warn employees of potential exposure to the virus. According to the complaint, these failures breached Walmart’s duty of care to the employee, resulting in the fatal infection. Plaintiffs in these type suits must overcome a state’s workers’ compensation bar to such claims; however, plaintiffs may be able to overcome the bar depending on the nature of the employer’s conduct that caused the injury. For example, some states waive the bar if it can be shown that the employer’s actions were intentional or demonstrate reckless indifference.
Ballard Spahr’s Labor and Employment Group is closely following these and other developments related to COVID-19 as they affect the workforce. If you have questions, please contact any member of the Labor and Employment Group for advice about your situation.
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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.