The COVID-19 pandemic has done a considerable amount for workplace litigation. Peter Wozniak, partner with Barnes & Thornburg, and Mark Wallin, of counsel with Barnes & Thornburg, discuss trends they’re seeing in litigation tracking.
Since March 2020, the Barnes & Thornburg LLP Wage and Hour Practice Group has been tracking COVID-19 related workplace litigation. The goal of this tracker is to allow employers to watch the trends as they develop, and (hopefully) avoid some of the pitfalls.
As the pandemic progressed, several notable trends have developed in the allegations. Far and away the largest number of complaints have come from the “Wrongful Termination, Retaliation and Bias” category. Some of these complaints allege that the plaintiff was terminated under the pretext of COVID-19, but that the true reason for the termination is one or more protected characteristics possessed by the plaintiff. Age and disability discrimination are among the most prevalent allegations. For example, in Pizzirulli v. Storer Transportation Service, et al., a 64-year-old charter bus driver in Stanislaus County, California, alleged that his temporary layoff was converted to a permanent layoff because of the COVID-19 pandemic. The plaintiff alleges that only three other employees were permanently laid off, and that these other employees were all about the same age as him.
Another emerging trend is claims arising out of federal leave laws such as the FMLA and the FFCRA. These complaints tend to allege that plaintiffs were terminated while on protected leave or that their jobs were not available when they attempted to return from leave. A prototypical example comes from Summit County, Ohio, in Leppo v. Environmental Design Group, LLC. In this complaint, the plaintiff alleges that she was terminated while on leave to provide childcare, and that six of seven employees taking FFCRA leave were terminated around the same time, “due to the economic impacts of COVID-19.”
A significant number of class and collective action complaints with a COVID-19 component have also been filed. In some of these claims, COVID-19 is merely background, unrelated to the class claims. In others, COVID-19 is material to the class claims, as in Jauregui, et al. v. Cytec Engineered Materials, Inc., et al. out of Orange County, California. This class action filed under the California Labor Code seeks unpaid wages for time employees allegedly spent waiting for temperature checks as part of a COVID-19 screen.
Time will tell whether these complaints have merit, and the next step will be to analyze whether the claims survive motion practice. The pandemic clearly has created a trap for the unwary. Mindful employers would do well to review their policies and practices to ensure compliance with state, local, and federal laws and regulations, and to consider seeking counsel. Moreover, caution should be exercised before acting, especially when it comes to actions that could affect large portions of your employee population, in order to avoid class claims (to the extent possible). Follow the Barnes & Thornburg COVID-19 Related Workplace Litigation Tracker for continued updates and analysis.
This article 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 lawyer about any specific legal questions you may have concerning your situation.
Published December 7, 2020.
