Disparate Impact Claims
The most prevalent types of lawsuits we expect to see are the disparate impact suits that arise when an employer applies a so-called neutral policy or practice which has a discriminatory effect. For instance, if a layoff falls harder on older workers, the employer may face a lawsuit because its selection process proves statistically significant impact to workers over age 40.
We have seen cases where the managers cause adverse impact in layoff selections. In one instance, statistical analysis showed a large reduction in force (“RIF”) would have adverse impact against those over age 40. The statistical group narrowed down the reason for the adverse impact to one division among three and then one region among several, finally determining that the entire adverse impact was based on one manager selecting four individuals for layoff, all of whom were over age 70.
Had the employer conducted an adverse impact analysis or attempted to correct the disparate impact of the RIF, a lawsuit could have been avoided. Instead, the employer refused to acknowledge the disparate impact to its detriment by paying our clients six figure damages. An adverse impact analysis could have been done, we showed, by listing the employees who would be laid off if the selection criteria were to be implemented. Then analyze whether certain protected classes are affected more than others by comparing the percentage of the protected class scheduled for layoff with the percentage of the protected class in the employer's entire workforce or the workforce subset selected for evaluation.
Often, an employer can make small modifications in the criteria used—such as applying the criteria across a larger pool—that reduces the impact on a particular class. If modifications are not feasible, the employer should make sure that it has a legitimate business purpose for using the criteria at issue.
Employers may also face bias suits if their layoffs fell harder on workers of a certain race, or if they cut ties with more members of a certain sex. And the return to work poses similar concerns if employers avoid recalling workers in protected groups.
It is anticipated that disabilities litigation will also flow from disability related claims stemming from COVID-19. The EEOC notes that employees with disabilities may request reasonable accommodations in response to the risk of exposure to the coronavirus. For example, this guidance states that employees with disabilities that put them at high risk for complications may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic. Of course, other types of accommodations may be requested for various coronavirus-related reasons, depending on the circumstances.
Indeed, we have received a number of calls from employees alleging employers violated state or federal law by refusing to let disabled employees work from home. These laws require employers to provide disabled workers with "reasonable accommodations" as long as they do not cause "undue hardship" for the business.
It used to be that employees who requested an “accommodation” in the form of telework were routinely denied such a request with the law tending to side in favor of the employer. Today, the analysis is different. Workplace flexibility because of COVID-19 has redefined workplace flexibility and is expected to endure well after the current pandemic. In fact, the EEOC has recognized that telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation.
Wage and Hour
The pervasiveness of remote work during the pandemic could also mean legal trouble for employers that have shorted workers on wages by failing to keep a close watch on their hours. The start and stop times for work must be recorded and properly accounted. There will likely be more claims against employees for failure to reimburse workers for overtime for all hours worked, and extra when they work more than 40 hours in a week. As the line between work and downtime blurs, businesses may face unpaid wage claims if workers log on early or answer a late-night email and aren't paid for their time.
New Jersey has one of the country's strongest set of wage and hour laws, but for now, many employees may be reluctant to bring claims because they feel lucky to have a job … and as such, it may not be the right time to bring these claims, when companies are in bad economic situations, but it is anticipated that as businesses recover and people continue to work from home, wage and hour cases will come.
Family and Sick Leave
The coronavirus pandemic has brought with it new legal obligations in the form of federal, state and municipal laws requiring employers to provide workers paid time off if they can't work because of the virus. Uncertainties in these new laws could lead to lawsuits for employers that deny workers time off — especially surrounding entitlements to take off due to school closures.
The federal leave law, known as the Families First Coronavirus Response Act (“FFCRA”), requires most employers with fewer than 500 workers to provide paid time off to workers who can't do their jobs for reasons related to the coronavirus. Among other things, the law lets workers take up to 12 weeks off with partial pay if they can't work because their child's school has closed.
Importantly, the new law provides an exemption from the long-term leave requirements for businesses with fewer than 50 workers. The DOL issued guidance for implementing the FFCRA in April, saying businesses are exempt if granting leave would "jeopardize the viability of the business as a going concern." This exemption may prove to be a hotbed for FFCRA claims if employers with less than 50 employees grant leave to some but not others.
The coronavirus (COVID-19) outbreak has changed the work situations for millions of people throughout the United States. In this time of crisis, Burnham Douglass is particularly concerned about protecting people’s employment rights. Please stay safe and please feel free to contact us if you have concerns about your workplace rights.