H.R. Alert – June 2020:
How to Avoid a COVID – 19 Law Suit
The current pandemic has resulted in numerous obligations that the California employer must abide by particularly when employers lay off his/her staff. This is a rapidly changing field of employment law. Violators of these laws are facing increased litigation. Please pay heed to the following.
Wrongful Termination
- These are very volatile claims filed by employees who wanted to continue working at home and were terminated for refusing to return to work at the employer’s discretion.
- Consider the situation where the employee who claims to have the virus and is making more money through the mandatory paid sick leave and subsequent leave of absence.
- How about the employee who does not have the virus but was temporally laid off and refuses to return to work for fear of catching the virus.
- What about the employee who was fired for refusing to wear the mask due to his belief that the mask will not protect him from COVID – 19.
- Then there is the situation where an employee was terminated because she was concerned that her co-workers with the virus were allowed to continue working at the jobsite.
The Answer: take every complaint seriously and conduct a thorough and complete investigation by a licensed investigator. Ensure that you completely understand all the obligations an employer must abide by in response to COVID – 19. If you are terminating an employee make sure you have clear reasons for doing so and have me examine the circumstances. Be prepared to show that the reason for the termination was unrelated to his/her complaint at work.
Discrimination
These are both federal and state claims filed by employees who believe they were selected for layoff or termination was due to their gender, age, race, ethnicity, religion, and gender identity.
- I recall a San Rafael mortgage broker who terminated young, African-American women who resided in Oakland or Richmond. In each case there were nondiscriminatory reasons for the termination backed by adequate documentation. However, all the termination managers were Caucasian. Interestingly, no men were terminated.
- I am currently working for an employer who has an employee who is African-American who consistently arrives to work late, is also late returning from lunch and has been observed putting on her make-up, and when confronted always makes another staff member responsible for her issues.
- What about the gay Bookkeeper who made a great show at his office when the U.S. Supreme Court passed a federal law making it illegal to discriminate against LGBQT workers in the workplace.
- Is laying off workers over the age of 40 discrimination? The answer may surprise you.
The Answer: be cautious when developing the identifying criteria for those you plan to layoff. Focus on whether you eliminate one group over another (young African-American women from the East Bay). When you bring employees back to work analyze your selection from the point of view of business selection and not from one of the protected categories. You must have clear reasons for doing so and have me examine the circumstances. Be prepared to show that the reason for the termination was related to work. When appropriate be prepared to utilize the interactive process when confronted by employees fearful of returning to work.
The WARN Act
- The federal Worker Adjustment and retraining Notification (WARN Act) in certain circumstances requires employers with 100 or more employees to provide at least 60 days’ notice before conducting massive employee layoffs or closing a plant.
- Under California’s WARN law, employers directly or indirectly own a covered establishment must give notice to laid-off employees. A covered establishment is any industrial or commercial facility or par thereof that has employed 75 employees within the preceding 12 months. Once again, the notice period is 60 days.
- Because of the spread of COVID – 19 employers have had to close rapidly without providing the required advance notice required by law. Beginning on March 4, 2020 through the end of the present medical crises the required notices are suspended for an employer who conducts a massive layoff, relocation, termination as long as the employer satisfies certain conditions .
The Answer: Employers struggling with COVID – 19 obligations and choosing to conduct massive layoffs should consider whether the layoffs are temporary or permanent before informing employees about the action because it could affect whether the WARN act notice is required. They should also calculate how many employees will be laid off over time as it may trigger adherence to the WARN act in the future. Please contact me to learn of your obligations.
COVID – 19 Laws Governing Compensation, Time Off and the Leaves of Absence
The Answer: Please re-read the attached H.R. Alert for April 2020.
These are very trying and upsetting times as the laws are changing and as such your employee handbooks, seminars and safety plans need to be updated.
Yes, we will get through these tough times although the end seems mysterious and elusive. If I can be of help please call.
Larry Levy
(415) 892-1497