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The Next COVID-19 Employment Litigation Hotbeds

covid-19 employment litigationSoon, the lawsuits that have made up the bulk of coronavirus-related litigation thus far — primarily concerning safety and wrongful termination — will give way to wage, discrimination and other related claims. While the suits filed so far reflect workers’ main concerns in the early days of the pandemic, as more businesses and courts open up and other claims percolate, employees will begin to bring new types of litigation.

The sudden shutdowns amid COVID-19’s rapid spread in March forced businesses to lay off or furlough millions of workers, many of whom have not gotten their jobs back. Months later, these mass layoffs will certainly spawn lawsuits. For instance, employees will bring a wave of suits accusing their employers of unwittingly discriminating against certain groups in their layoffs by applying neutral policies to discriminatory effect. If a layoff falls harder on older workers, for example, those workers will be able to sue even if the employer didn’t consciously discriminate. Employees may also sue if layoffs fell harder on workers of a certain race or a certain sex.

And the return to work poses similar concerns if employers avoid recalling workers in protected groups.

The coming months could also see an increase in suits alleging employers violated state or federal law by refusing to let disabled employees work from home. These laws require that disabled employees are provided with “reasonable accommodations” as long as they do not cause “undue hardship” for the business. Historically, workers have faced an uphill battle proving they’re entitled to telework as a reasonable accommodation but, now, workers wary of returning to the office due to a disability-related predisposition to COVID19 complications have stronger cases should their employers refuse to accommodate them.

Remote work during the pandemic could also mean legal relief for employees who have been shorted on wages by their employer’s failure to keep a close watch on their hours. The transition of people from physically traveling to an office, working during the day and traveling home, to simply walking down the hallway to their computer has changed the work day, its start time, its stop time and its break periods.

As the line between work and downtime blurs, workers may also bring unpaid wage claims if they log on early or answer a late-night email and aren’t paid for their time. Also, workers can expect to file lawsuits accusing employers of failing to reimburse them for business expenses incurred during the shift to remote work. Federal law requires employers to pay the difference if work expenses push pay below minimum wage, and some state laws go even further.

If workers have had to buy office equipment or upgrade their internet to telework and haven’t been reimbursed, they may sue. Businesses are particularly vulnerable to lawsuits in California, which has the country’s strongest set of wage and hour laws. For example, the state requires employers to reimburse “necessary” expenses and to provide paid meal and rest breaks when workers hit a certain number of hours.

New federal, state and municipal laws require employers to provide workers paid time off if they can’t work because of the virus. Uncertainties in these new laws could lead to lawsuits for employers that deny workers time off — especially surrounding entitlements to take off due to school closures.

The federal leave law, known as the Families First Coronavirus Response Act, requires most employers with fewer than 500 workers to provide paid time off to workers who can’t do their jobs for reasons related to the coronavirus. Among other things, the law lets workers take up to 12 weeks off with partial pay if they can’t work because their child’s school has closed.

This is just the beginning. As the virus persists and shows no sign of going away any time soon, it’s clear that employers can expect more not less confusion in the future and employees can exercise more not fewer rights as they protect themselves and their families from unfair workplace practices. As one type of lawsuit gains traction, others will be waiting to test these new grounds. One thing is certain: change is on the rise.

Employment Law Blog

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