Today’s post comes to us from Workforce Institute board member Mark Wales.
As we predicted earlier this year, we are starting to see the first significant increases in labor-related legal actions related to the Covid-19 pandemic.
The National Law Review in May 2021 cites pandemic-related class actions as the number 1 trend for 2021. This is based on what is being tracked and seen so far by a variety of legal analysts.
JDSPURA has published the below map of labor-related pandemic legal cases for the U.S. and listed the top 5 key drivers as being:
- Alleged failure to provide a safe working environment
- Discrimination (especially disability and age)
- Leave claims (including both FMLA and the varying state laws)
- Retaliation or whistleblower claims (as related to workplace safety or leave)
- Wage and hour (related to the pandemic)
In 2020, over 38% of the cases were classified as relating to termination, which is not unexpected, given the nature of the unprecedented need to close business operations down temporarily, and the processes companies took to decide who and what jobs they retained.
JDSUPRA concludes that thus far, few of the cases are maturing into class certification stage, but courts have reached varying conclusions, so this is an aspect to watch in 2021.
The American Bar Association (ABA) warns of cases surrounding misclassification of employees, such as the complaints against Uber and Lyft. The ABA also highlights issues arising from bringing employees back to company locations and the complexity of managing risk when it comes to who is sick and company policies around managing that risk as it relates to other employees and the public.
The latest Jackson Lewis Covid-19 Employment Litwatch analysis shows the growing cumulative volume of complaints:
The National Law Review advises employers to carefully monitor and prepare for issues arising from:
- Wage and hour complaints (especially off the clock working)
- Expenses related to home working
- Wage and hour related to nonexempt workers waiting (such as delays will be being scanned for temperatures)
- Mandated vaccinations
- Discrimination over who returns to work
Many organizations have yet to finalize rules or begin bringing all workers back to the office and this return to work is likely to increase the complexity and volume of cases. There will be a whole new level of complexity around accommodations and equity on an ongoing basis.
How will company policies evolve and will companies codify policies that adjust for individual state, county or municipality guidelines and laws around “opening up” after the pandemic?
As with so much having to do with the pandemic, there is much uncertainty as to what the new normal looks like for businesses. Company policies around labor law, health and safety, and equity will be huge minefields for quite some time.
What Can Organizations Do?
Organization leadership in Workforce Management, HR, Operations, and Legal should set up regular joint sessions to review external trends, internal developments, and develop concrete and actionable plans to prepare and deal with emerging pandemic-related labor issues. This will minimize the unexpected and ease required responses or actions.
Companies must consider the issues of health, safety and equity as seriously as other issues of labor law compliance.