The Risk of Employment Litigation in the Wake of the COVID-19 Pandemic

By Douglas Lipsky

The COVID-19 pandemic has triggered a tectonic shift in the employment landscape that may result in a wave of litigation alleging employers violated existing labor laws and the recently enacted coronavirus leave law. If you believe your employment rights have been violated, you should consult with an experienced employment lawyer.

The New Normal

While employees in the greater New York area have legal protections under local, state, and federal law, employment-related disputes are not uncommon. Though the regional economy remains under lockdown more or less, the new normal may see an increase in certain types of employment litigation, such as:

Wage and Hour Claims During the COVID-19 Crisis

Regardless of the pandemic, non-salaried workers in New York are entitled to the state’s current minimum wage as well as overtime for all hours worked over 40 per week. Given the massive shift of most office work to telework, however, tracking employee hours may become more complicated and these timekeeping challenges invariably lead to wage and hour claims. 

While traditional tracking mechanisms allow employers to determine when workers start, take lunch breaks, leave for the day, etc., businesses that have not adapted to track clock worker hours offsite could face wage theft claims by workers alleging they worked through breaks. Despite the COVID-19 crisis, employers must be mindful of their obligations under the federal Fair Labor Standards Act (FLSA) and applicable state labor law. 

If/when businesses begin to re-open, employers may also face potential liability if they require workers to take certain precautionary measures before entering the premises (such as temperature checks) or donning personal protective equipment prior to starting a shift.  These activities may be construed as off-the-clock work for which employees must be compensated. 

Paid Sick Leave Disputes During the Coronavirus Outbreak

The Families First Coronavirus Response Act (FFCRA), passed by Congress in March, requires employers with fewer than 500 employees to provide them with a certain amount of paid time off for COVID-19-related reasons, such as falling ill or caring for a child whose school has closed. 

Employers in New York have a legal obligation to determine which employees are eligible and then provide them with the proper amount of paid leave time. Businesses can face lawsuits for

  • Unfairly denying paid leave 
  • Miscalculating pay
  • Retaliating against employees who request paid leave

In short, claims brought by employees alleging FFCRA violations, including wrongful termination, are likely to spike during the novel coronavirus pandemic.

Safety (OSHA) Violations As a Result of the Pandemic

Workers in hospitals, food processing facilities (see Smithfield and Tyson), grocery stores and others on the front lines who contract COVID-19 due to unsafe working conditions face an uphill battle. While the Occupational Health and Safety Act requires employers to ensure that the work environment is safe, the law does not allow workers to sue their employers over unsafe working conditions. Workers who fall ill due to the pandemic may be entitled to worker’s compensation, albeit that proving they contracted the novel coronavirus at work can be difficult. 

Nonetheless, businesses in New York should follow the Centers for Disease Control and Prevention (CDC) guidelines relative to social distancing and other protective measures in the workplace. It is worth noting that the CDC has issued guidance stating employers can prescreen workers by implementing temperature checks and coronavirus testing. Ultimately, claims over OSHA violations, workers’ comp claims, as well as third-party claims are likely to spike as the pandemic unfolds. 

WARN Act Violations

Workers in New York are protected by both the federal Worker Adjustment and Retraining Notification Act (WARN Act) and the state WARN Act. Both laws require employers to provide advance notice of mass layoffs, but New York’s law provides greater protections than the federal WARN Act. Employers in the state are required to provide workers with a 90-day written notice of a mass layoff, plant closing, or relocation. 

Employers who fail to abide by the notice requirement may be held liable for back pay and benefits for 60 days of the violation and civil penalties of up to $500 per day of the violation. It is worth noting that businesses that shut down because of unforeseeable circumstances may not be held liable if the courts determine the pandemic constitutes such an event. 

Disability Accommodations

As we wrote in a recent blog post, the embrace of teleworking for office workers by businesses in response to the COVID-19 pandemic may lead to an increase in requests to work from home as a reasonable disability accommodation. At this juncture, the courts have been generally reluctant to acknowledge teleworking as an accommodation. 

Employers may no longer have valid arguments that such an accommodation would cause undue difficulty or expense, however, if it can be shown that teleworking during the pandemic did not adversely impact productivity. In the meantime, those workers who are more at risk of becoming seriously stricken with COVID-19 due to factors such as age and preexisting conditions may be entitled to a teleworking accommodation.

Why This Matters

The COVID-19 crisis raises compelling and unprecedented challenges for employers and employees alike. The best way to address your concerns is to contact the experienced employment lawyers at Lipsky Lowe LLP. We will be the strength in your corner now and in the days ahead.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.