Preparing for Battle: How to Build Your Litigation Defenses

Key Takeaways | Preparing for Battle: How to Build Your Litigation Defenses Now


The employment and business decisions made by employers during this unprecedented COVID-19 pandemic are now being tested by plaintiffs’ lawyers. Employers of all sizes should expect a flood of employment litigation, building in real time as we face ever-changing conditions, constantly updated guidance and, at times, conflicting state and local guidance. Litigation avoidance will require a team effort and proactive communications internally and externally. In our webinar, we outlined the types of claims we are seeing and can expect more of as a result of COVID-19.

View the full webinar here.

In Depth

  1. Whistleblower litigation: More than 3,000 complaints have been filed with Occupational Safety and Health Administration (OSHA) in the midst of the pandemic. These complaints typically include allegations of health and safety allegations and that employers did not take steps to protect workers. To mitigate claims, employers should communicate that health and safety are a top priority and be transparent on any plans to bring workers safely back into the workplace from home. Give employees a forum to ask questions and voice concerns anonymously, so issues can first be addressed internally rather than reported to an outside agency. While we are only starting to see the first wave of litigation, in a recent class action involving a meatpacking distributor, the Court found that OSHA and not the court should address the safety issues brought by the plaintiffs. This decision provides some takeaways for employers as they try to mitigate litigation risk and defend against future whistleblower litigation. We have some authority to support the position that compliance with CDC/OSHA guidelines is sufficient, and compliance is determined by those agencies, not what individuals happen to think is best. With this in mind, it is critical to stay on top of current guidance and have a person or team designated to monitor changes and circulate information within the company. Employers should also update compliance policies and procedures, and document the basis for any adjustments to compliance measures for employees.
  2. FFCRA claims: In an informal poll of our webinar audience, roughly half of respondents indicated an employee had requested some type of leave under the FFCRA/ADA/FMLA related to COVID-19. Looking at litigation filed between March and May 2020, almost 30% of cases were claims involving some type of leave, including denial of leave requests, retaliation for requesting leave and termination. If you are subject to FFCRA regulations, there are some steps you can take to protect your business. First, designate an internal FFCRA expert or team to oversee compliance with the requirements and consistently and fairly administer the company’s policies when handling FFCRA requests from employees. You may also want to coordinate with outside counsel, especially when denying a leave request or taking an adverse action against an employee who requested or is on leave. Coordinating with counsel will help you take strategic steps to plan for potential litigation that may result from that decision.Have you had an employee request FFCRA, ADA, or FMLA leave related to COVID-19?Employers should also train managers on how to handle leave requests and forward FFCRA inquiries to the designated person or team responsible. Individual managers should not be the primary point of contact to avoid any inconsistencies in leave decisions. Also, maintain supporting documentation for each leave request, any related correspondence and any potential denial or adverse action so you have a record of all steps in the process. There are also IRS requirements for documentation in order for employers to receive tax credits and record retention requirements that we covered in a previous webinar (Return to Work Virtual Toolkit Part 5–Preparing for the Unknown).
  3. ADA/FMLA claims: Under the ADA, employers cannot make employment decisions because of an employee’s disability, and the law prohibits discrimination against qualified individuals with a disability who, with or without a reasonable accommodation, can perform the essential functions of a job. Some of the claims we are currently seeing involve employees who allege that they were terminated as a result of having COVID-19 or are at higher risk of contracting COVID-19. For employees who request a reasonable accommodation, is unpaid leave an option? The EEOC says yes, “so long as it does not create an undue hardship for the employer.” For employers, it is important to go through the interactive process—ask questions to understand what the disability is, what specific accommodations are requested, and how long they are needed. Decisions should be made on a case-by-case basis, and can often depend on the industry, work environment, and individual job responsibilities.FMLA provides certain eligible employees with up to 12 weeks of unpaid leave for covered events, which can include a serious health condition or caring for an employee’s spouse, child or parent who has a serious health condition. Upon return to work, the employee is entitled to reinstatement to his/her former position or an equivalent position. Current COVID-related FMLA claims mostly involve termination or furlough after an employee took leave, or failing to provide leave and terminating an employee who reported COVID-like symptoms. For employers preparing to defend against FMLA claims, it is key to designate an internal point person to consult with outside counsel along the way to ensure compliance with company and FMLA policy. Managers should be trained to bring any reported issues to HR and employers should maintain documentation and records.
  4. Workers’ compensation claims: As employers across industries reopen, personal injury, workers’ compensation and wrongful death claims are going to be more common. Claims for work-related injuries and illnesses are handled through workers’ compensation insurance, which is mandated in each state and typically compensates employees for medical expenses and lost wages if they are injured or become ill as a result of employment, and may provide damages for specific injuries or even death. All but a few states recognize some form of exception to workers’ compensation as an exclusive remedy. Employees can typically escape a workers’ compensation statute and sue for damages under theories of gross negligence or willful/intentional misconduct. What can you do to mitigate these types of claims? It is critical to have a comprehensive plan to bring people safely back to work, address PPE and implement other enhanced safety measures. Some other best practices include promptly notifying employees of suspected or confirmed workplace exposures (while protecting the privacy of sick employees) and advising any symptomatic employees to stay home. Employers should also conduct health screenings before employees enter the workplace and provide appropriate PPE in addition to frequent and thorough sanitation of workspaces and blocking common areas. Staggered shifts can also help minimize the number of workers in the workplace at the same time. In addition, all employers should document these practices and the dates they are implemented and continue to comply with all applicable guidelines from the CDC, OSHA and state and local governments, as well as industry specific guidelines.
  5. Wage and hour issues: The Fair Labor Standards Act (FLSA) requires employers to pay overtime (OT) to employees who are permitted—not required—to work. This can be a challenge for employers who have nonexempt employees working remotely due to COVID-19. If nonexempt employees work beyond their schedules, employers are required to compensate for that time. With so much of the workforce currently remote, it is important to communicate to your employees regarding schedules and logging off outside of standard hours. It may be advisable to set up a daily or weekly email to nonexempt employees as a reminder. If employees work beyond their schedule and incur OT, you can discipline them for working without authorization, but you cannot fail to pay. Meal and rest breaks for nonexempt workers are also likely to come up in litigation. Communication and company policy are key, and employers should remind employees regularly about the state rules and encourage employees to take the time or notify their supervisor so you can compensate them appropriately. In addition, we are seeing a wave of claims regarding reimbursable business expenses. Several states (e.g., California and Illinois) require employers to reimburse for reasonable work expenses for remote employees. Some examples include a pro rata share of cell phone bills, internet expenses, office supplies and office furniture. Some employees may request reasonable accommodations as well, such as ergonomic equipment, and employers should engage in the ADA interactive process in those cases. And finally, many businesses that are reopening are putting safety measures in place, such as temperature taking and health screening questionnaires before employees begin a shift. Be aware that some states have defined certain actions as compensable and employers should consider how they will track time spent on these tasks as employees return to work.