As the number of COVID-19 cases continues to grow, so does the number of employment-related lawsuits filed by workers across the country against their employers. The pandemic laid the groundwork for new local, state and federal laws and regulations governing a number of workplace issues like workplace safety, family and medical leave and remote work. And it created new challenges for employers who were forced to close operations, lay off and furlough workers and organize new work arrangements.
Most common employment-related lawsuits
The surge resulted in a record number of COVID-19-related class-action lawsuits, the majority of them concerning disputes over:
- Alleged failure to provide a safe working environment.
- Discrimination claims, particularly relating to disability and age.
- Leave claims under the Family Medical Leave Act and the patchwork of federal, state, and local laws enacted in response to the pandemic.
- Retaliation and whistleblower claims, often attached to either a workplace safety or leave issue.
- Wage and hour lawsuits arising out of the pandemic.
Lawsuits by the numbers
Two law firms that track workplace litigation report that there were more than 1,000 COVID-19-related lawsuits filed by workers against their employers in 2020.
Employees filed 1,452 lawsuits in state and federal court from Jan. 1 through the middle of December, according to Littler Mendelson in San Francisco. Meanwhile, Seyfarth Shaw put the number at 1,005 for all of last year.
According to Seyfarth, of those cases:
- 690 were complaints concerning layoffs and firings that were spurred by the pandemic.
- 339 cases were related to workplace safety and retaliation for complaining about safety shortfalls. Many of these cases allege that employers had failed to protect their workers from contracting COVID-19 through safety measures such as partitions between workstations, face covering, social distancing, and more.
A full 190 of these cases were workers alleging employers retaliated by firing them for complaining about unsafe working conditions, or the failure to comply with COVID-19 protocols.
- 240 cases were for discrimination typically for terminations of furloughs. Discrimination complaints cut across a number of protected categories, including, age, racial and gender discrimination. Typically, complaints concern being discriminated against during the layoff process and employees alleging they were targeted for dismissal based on their protected category.
- 113 were wage and hour claims, mostly concerning employees alleging they were forced to work off the clock. This was especially prominent in cases of people working from home, where the lines between home life and work can get blurred.
- 93 were for FMLA infractions. Many suits say employees grappling with COVID-19 themselves or caring for a relative have been illegally denied sick leave or family and medical leave.
“We anticipate that the tide of workplace class action litigation will continue to rise in several key areas such as discrimination and workplace bias, wage & hour, as well as on the health & safety front,” Seyfarth wrote in its report. “Employers are apt to see these workplace class actions expand and morph as businesses restart operations in 2021 in the wake of COVID-19, particularly as courts roll out a patchwork quilt of rulings.”
The worst part: Both firms predict even more pandemic-related lawsuits to be filed in 2021, asserting that the coronavirus is now the main force pushing a new surge in workplace litigation.
What you can do to protect your business
Employers should familiarize themselves with the workplace laws that were put in place by the CARES Act and other federal legislation, as well as any laws or regulations that were enacted in their states in response to the COVID-19 pandemic.
Compliance is key to many of these measures, particularly if you may be putting employees or the general public at risk. Comply with workplace safety regulations concerning your workers and do not retaliate against anyone who comes to you with concerns about your COVID-19 safety protocols.
Also, if you are terminating or firing people because you cannot keep them on due to the pandemic, make sure you do so fairly and do not single out any number of people in a protected class. The decisions should be made based on their work duties, their value to the organization ― and even seniority.
Lastly, Employment Practices Liability Insurance (EPLI) is a crucial coverage that can help you cover the costs of an expensive workplace lawsuit and pay for your defense. With these lawsuits still on the rise, EPLI coverage will be more important in 2021 than ever.
