A look at both old and new laws that will help
us protect workers’ rights in the age of COVID-19
(This article was first published in Plaintiff magazine, May 2020 edition)
By Bryan Schwartz and Jinny Kim
Maybe we never expected to be helping clients from our
living room recliners, between organizing videoconferences for our
kindergartners and answering questions on mobile technology and “what’s for
dinner?” from our middle and high schoolers. But, few of us expected a lot of things
that are happening now. Though our work lives have been impacted, many of our
clients’ lives have been upended far more dramatically. Their challenges keep
us fighting, even as new hurdles are placed in our paths.
In this article, we discuss the contours of Pandemic World
for plaintiffs’ employment lawyers – how our practices have been affected by
COVID-19, and then how our clients’ rights are developing.
Practicing in unpracticed ways
In practicing law, the wise know the precedents – knowing
what happened years ago helps us decide what to do now, on this case. Yet,
suddenly how we practice law is new for many of us. This must have been what
the old guard felt like when Westlaw, Lexis, and other types of online legal
research became available and bookcases of yellow books with yellowing pages
became more ornamental than fundamental to our law practices.
We have to look forward, rather than looking back – the
remote practice of law might become an additional arrow in our quiver, rather
than an inconvenience. Could we hire more lawyers and support staff, with less
office space and travel costs in the future? For now, everything is Zoom and Hangouts
and GoToMeeting and we feel like we are all getting to know each others’ living
rooms and pets and kids and sweatshirt collections.
Beyond the obvious differences – that we are all
communicating remotely with our colleagues using a host of new technologies –
our law practices have been affected by court closures, stalled discovery,
defendants becoming insolvent, changes in how we conduct depositions and
mediations, frozen hiring of new lawyers and law clerks, and in myriad other
ways. The question is how to keep up the pressure on defendants and their counsel
– plaintiffs’ attorneys’ number one job – when so many of our usual weapons are
holstered.
Keep pressing
Some defendants have had operations overwhelmed by COVID-19
– health care providers, for example – and one can readily sympathize with a
need for a time out. Other defendants, however, seem cynically to be commandeering
the coronavirus “opportunity” to delay what previously they could not
stall. Your blessed motion to compel hearing date would finally be arriving,
after 20 meet-and-confers, an informal discovery dispute process, several
flimsy supplemental productions by defendant trying to derail your motion, hundreds
of pages of briefing and separate statements and attachments and exhibits. And
now? Off-calendar, with no court date in sight. Defendant rides hard the newest
excuse in the playbook – that the virus is inhibiting its ability to do what it
was already avoiding for many months before the virus. What can we do?
Never stop. Call and email every day, cell and office
numbers and addresses, maybe twice a day. Keep the guns blazing, secure in the
knowledge that all over, plaintiffs’ attorneys are hearing the same thing.
While being empathetic to legitimate health and safety concerns, we call foul
on this like we do with other nefarious employer practices. If the court is
accepting filings (even if it is not processing them speedily), then keep
filing. Meanwhile, keep taking new cases – as we discuss below, there are as many
(or more) violations now than in pre-Pandemic World.
The good news – cases are settling
Unlike many of our clients whose employers are shuttered
and who are laid off indefinitely, we attorneys can do this work remotely with
the new technologies.
Top mediators are reporting great success rates at Zoom
mediations. Said one, “I have settled every one I’ve done in the past three weeks,
many by 3:00 p.m. or 4:00 p.m. Ironically, it seems like people are more
invested in getting serious earlier and getting it done as soon as possible;
maybe because they have childcare issues at home, smell dinner cooking in the
background, want to get to their Covidtini – whatever it is, it seems to be
working.”
The lesson: keep scheduling mediations, especially with
mediators you know and trust. While it may be harder to develop trust
relationships with unknown quantities, you can still get cases settled with
your go-to mediators.
Court reporting services have pivoted to remote
depositions. Keep scheduling them – especially for witnesses who are not the
core wrongdoers. There seems to be no downside to defending plaintiffs and our
witnesses remotely (apart from the inability to kick your client under the table).
Some defendants will not agree to remote depositions – perhaps soon the courts
will require parties to comply with remote depositions, like the courts have recently
forced employers’ hands with electronic service
(https://newsroom.courts.ca.gov/news/judicial-council-mandates-electronic-service-of-documents-in-most-civil-cases).
The bad news – employers in financial trouble
A typical message some plaintiffs’ lawyers are receiving is
this recent one: “I have not been able to discuss this with my client.
Moreover, one key issue is that I am unsure about the continued viability of an
offer including reinstatement given the [employer’s] developing financial condition.
I will follow up as soon as I have some more information.” Another defendant
said, “who knows where the employer will be in three months with COVID - they
could be out of business.”
While many of us are accustomed to poverty pleas from
defendants even in the best of times, now unquestionably these are a common
feature of our landscape. Though many businesses are currently avoiding
bankruptcy with the government’s massive cash infusion into the economy, soon,
we will start to see a wave of failing businesses. Line up your bankruptcy
lawyers now because they will be busy later in the year! Many businesses will fail and not have bankruptcy filings,
trying to come out on the other side of this pandemic, but many others will try
to pull through. Even now, bankruptcy courts are conducting hearings, remotely.
Generally, confusion abounds about which courts are
accepting which types of filings, and details on courts’ different Pandemic
World approaches are beyond the scope of this article. (In any event, such
information would be outdated by the time you read this!) Check each court’s
website for this week’s latest updates. Plaintiffs’ attorneys should continue
to seek tolling agreements, though certainly with courts closed, it is likely
that many exhaustion deadlines are continued. The smart play is – as usual –
exhaust and file as early as you can, wherever you can, rather than letting the
clock run.
We are all being forced to make some hard decisions. With
trial dates far in the distance, and many businesses in treacherous financial
waters, the smart play in many cases may be to get the sure money for your
client today where you can, instead of holding out for the best-day outcome.
Many of our clients need the money, now.
The bad news is far worse for our clients who are out of
work and whose rights have been violated, than it is for us. Following are some
of the protections and claims we are discussing with them every day.
Sick leave
With the closing of offices, schools and childcare centers
around the country, many workers are suddenly juggling work and family
obligations – in the home – while focusing on staying healthy and safe. The
COVID-19 crisis highlights and supplements the complex and confusing patchwork
of programs and laws that protect workers’ jobs and income when they cannot
work because they are sick, caring for family members who are sick or caring
for children whose schools and childcare centers are now closed.
Existing California law can be used by sick workers,
workers who need preventative care relating to COVID-19 or are caring for sick
family members, including when public authorities recommend quarantine or
self-isolation.
California law requires that all workers have access to at
least three paid sick days each year. Local laws provide more paid sick days
including for those workers in Berkeley, Emeryville, Los Angeles, Oakland, San
Diego, San Francisco and Santa Monica.
Qualified California workers also have access to an
existing State Disability Insurance and Paid Family Leave program that allows
workers who are unable to work because of their own disability or because they
are caring for a family member who has a serious health condition to receive
wage replacement benefits. This program is entirely employee funded and
provides wage replacement benefits at 60 or 70 percent of a worker’s normal
pay.
Many employees can access twelve weeks of job-protected
unpaid leave under the Family Medical Leave Act (FMLA)/California Family Rights
Act (CFRA) for an employee’s serious health condition, such as COVID-19, or to
care for a family member with a serious health condition. To qualify for
coverage, an employee must work for an employer with at least 50 employees
within 75 miles of their worksite; have worked there for at least one year; and
have worked for a minimum of 1,250 hours in the year prior to taking time off.
Because of these stringent requirements, 40% of workers – primarily low-wage
earners – are not covered.
For employees who do not meet the requirements of the
FMLA/CFRA and have a qualifying disability or medical condition, a leave of
absence may be a reasonable accommodation under the Americans with Disabilities
Act (ADA) or California’s Fair Employment and Housing Act (FEHA).
Families First Coronavirus Response Act
Through the end of the year, employees who work for
employers with fewer than 500 employees, are entitled to two weeks (up to 80
hours) of paid sick days paid directly by their employer but reimbursed by the
Federal government through the Families First Coronavirus Response Act (FFCRA).
These paid sick days are available to current (not furloughed or laid off)
employees who have been told to self-isolate, quarantine, or are seeking
medical attention because of COVID-19-related symptoms or to employees who are
caring for a family member based on these same reasons.
Employees can also use these paid sick days if they cannot
work due to caring for a child whose school or place of care has closed down.
Employees who use paid sick days to care for themselves will receive full pay
of up to $511 per day. Employees who use paid sick days to care for a family
member or a child whose school or childcare is unavailable will receive 2/3 of their
pay of up to $200 per day.
FFCRA also narrowly expands the FMLA by providing up to an
additional 10 weeks of paid leave only for employees who need to take care of
children who cannot go to school or daycare. This narrow expansion of the FMLA
does not cover employees who actually have COVID-19 or to care for family
members who have COVID-19.
Exemptions from FFCRA
Employers with fewer than 50 employees can seek an
exemption from the paid sick days provision of the FFCRA if it “would
jeopardize the viability of the business as a going concern.” Health care workers
(which is very broadly defined) and first responders may also be exempt from both
the paid sick days and the expanded FMLA provisions of the FFCRA. The Department
of Labor itself estimates that 9 million health care workers, 4.4 million first
responders and 96% of firms are exempt from coverage. (https://www.federalregister.gov/documents/2020/04/06/2020-07237/paid-leave-under-the-families-first-coronavirus-response-act#p-187)
Enforcement of the FFCRA will depend on what part of the
FFCRA you want to challenge. An employer violating the FFCRA’s paid sick leave requirements
is considered to have failed to pay the minimum wage under the Fair Labor
Standards Act. An employer who violates the FFCRA’s expanded FMLA provision can
be sued under the FMLA itself for failure to provide leave, failure to reinstate,
discrimination, or retaliation. However, employees may have no private right of
action for the FFCRA’s expanded FMLA provision if the employer was not already
subject to the FMLA (e.g., employers with fewer than 50 employees).
While the FFCRA will provide a crucial lifeline for those
who qualify, a huge percentage of the workforce will not benefit from the
legislation. Therefore, states and municipalities are filling in the gaps. To
date, Emeryville, Los Angeles, San Francisco and San Jose have passed their own
ordinances to offset the shortcomings of the FFCRA by mandating paid sick time
for employees of large corporations (500+ employees). In addition, Governor
Newsom recently issued an executive order which provides two weeks of paid time
off for isolation, quarantine and other medical directives to California workers
in the food industry, including farm and agricultural workers, grocery and fast
food workers, and delivery workers.
Layoffs, furloughs and the WARN Act
Due to the coronavirus pandemic, millions of workers across
the country are getting laid off, furloughed, or outright terminated.
While most workers in California are considered at-will,
some workers have contracts with their employer which set forth termination
procedures requiring notice and severance. Employers who fail to fulfill their
contractual obligations could face a breach of contract action which would make
them liable for lost wages, future wages, and general or special damages.
Employers must pay terminated employees with their final
paycheck, accrued vacation pay and required unemployment and COBRA
documentation. The failure to do so can subject an employer to waiting-time
penalties (under Labor Code section 203), civil and criminal penalties, and attorneys’
fees.
On March 17, 2020, Governor Newsom issued Executive Order
N-31-20 which temporarily suspends the 60-day advance notice required under the
California Worker Adjustment and Retraining Notification (WARN) Act for a
layoff, relocation or termination of 50+ employees, in a 30-day period at a
business that employs 75 or more employees. The temporary suspension must be
for COVID-19-related “business circumstances that was not reasonably foreseeable at the
time that notice would have been required.” Notice is still required but only
“as much notice as practicable.” Employers can owe 60 days of backpay and
benefits for the period of violation as well as attorneys’ fees for failure to
provide adequate notice.
Employers are also on the hook to the state for civil penalties
in the amount of $500 per day of delay, as well as attorneys’ fees. Certainly,
for any mass layoff, plaintiffs’ attorneys should determine if disparate impact
claims can be brought on behalf of a protected class such as older workers or
workers with disabilities.
A furlough is different from a layoff – an
employer-initiated unpaid leave of absence. Furloughed employees must be paid
for all work performed and should not be working (including checking email or
voicemail) during the furlough. According to an opinion letter by the
Department of Labor Standards Enforcement (the California agency charged with
enforcing wage and hour law), a furlough without a definite return to work date
within the shorter of 10 days or the employee’s normal pay period may be a
termination requiring the payment of final wages. A furlough exceeding a de
minimis amount of time could trigger WARN Act obligations. (See Int’l
Brotherhood of Boilermakers, et al. v. NASSCO Holdings, Inc. (2017) 17
Cal.App.5th 1105.)
Unemployment insurance — up to $1,050 a week
According to Department of Labor data, nearly 17 million,
or one in ten, American workers applied for unemployment insurance between
March 15 and April 4. (https://www.dol.gov/ui/data.pdf) This does not include
workers affected by the coronavirus pandemic but who may not be eligible for
regular unemployment insurance, such as independent contractors and those
forced to quit because of lack of childcare.
In California, under the existing unemployment insurance (UI)
benefits program, qualified employees can receive between $40 and $450 per week
depending on their work history and how much they are able to still earn. To
qualify for UI, employees must: be out of work or underemployed through no
fault of their own; have enough past wages; and be able, available, and willing
to work.
On March 27, Congress passed the $250 billion Coronavirus
Aid, Relief and Economic Security (CARES) Act which created three new programs:
(1) Pandemic Unemployment Assistance (PUA) which provides
up to 39 weeks of emergency unemployment assistance to workers who do not
qualify for regular state unemployment insurance – including self-employed
workers, independent contractors, and freelancers – or who have exhausted their
state UI benefits;
(2) Pandemic Unemployment Compensation (PUC) which provides all
regular UI and PUA claimants with an
additional $600 payment per week through July 2020; and
(3) Pandemic Emergency
Unemployment Compensation (PEUC) which provides an additional 13 weeks of state
UI benefits until December 31, 2020, unless it is otherwise extended.
As expected, California and other states are scrambling to
set up the infrastructure
to administer the federal program. The Employment
Development Department will accept online applications for PUA beginning April
28.
(https://edd.ca.gov/about_edd/coronavirus-2019/pandemic-unemployment-assistance.htm).
Health and safety
As most Americans shelter in place, front-line workers are
still providing critical care and support, risking their own health and safety
and that of their loved ones. These essential workers include health care
employees, grocery and pharmacy employees and employees of shipping companies.
Many workers needlessly lost their lives. In order to stop tragedies from
endlessly repeating, employers must take appropriate measures to provide employees
with safe and healthy work environments. Thousands of employees have filed workplace
safety complaints against their employers related to coronavirus, due to lack
of Personal Protective Equipment (PPE) (e.g., gloves, masks and cleaning
supplies), failure to follow social distancing requirements, and being forced
to work alongside sick co-workers.
The CDC’s reversal of guidance for essential workers,
allowing asymptomatic workers to continue working, will only expose others to
coronavirus and escalate safety violations.
(https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html)
Workers fear not only contagion, but retaliation for
raising their concerns with their employers. Employees are being terminated for
raising well-founded health and safety concerns to their employers. An employee
terminated for exercising their OSHA rights has strong claims for wrongful
termination in violation of public policy and Labor Code sections 1102.5 and
6310, in addition to the Labor Code Private Attorneys General Act (PAGA).
COVID-19 and Workers’ Comp
When a worker contracts COVID-19 on the job, they may be
eligible for workers’ compensation benefits, including temporary disability
payments and medical treatment. Illness due to the common cold or flu is not
considered work related for purposes of workers’ compensation benefits, but
diseases such as tuberculosis, Hepatitis A, and COVID-19 are considered work
related. Employees may bring claims for negligence where a company fails to
take reasonable measures to prevent the spread of COVID-19, and possibly a
public nuisance claim.
In a memo to its members dated April 13, the Chamber of
Commerce stated that “exposure liability” is “the largest area of concern for
the overall business community.”
(https://www.uschamber.com/coronavirus/implementing-national-return-to-work-plan#liability)
The Chamber argues that lawsuits may send businesses and industries into
bankruptcy, lobbying for blanket protections against coronavirus-related claims
and procedural reforms. (Ibid.)
Instead, we should have legislation providing real
protections to critical workers who remain on the job. Until that happens,
workers will continue to work without access to PPE, get fired for asserting
their rights, and will ultimately put their health, safety, and many lives at risk.
Disability
Employees who work for employers following the guidelines
of the Centers for Disease Control (CDC) and local public health authorities
are still entitled to worker protections under the ADA and FEHA, including
reasonable accommodations, non-discrimination based on disability, and
prohibitions against medical examinations and inquiries.
Both the Equal Employment Opportunity Commission (EEOC) and
the Department of Fair Employment and Housing (DFEH) have issued coronavirus guidance:
“Pandemic Preparedness in the Workplace and the Americans with Disabilities
Act” (https://www.eeoc.gov/facts/pandemic_flu.html) and the “DFEH Employment
Information on COVID-19.”
(https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf)
The EEOC has also published technical assistance questions and answers
entitled, “What You Should Know about COVID-19 and the ADA, Rehabilitation Act,
and other EEO laws.” (https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm)
The EEOC and DFEH have not yet found COVID-19 to be a disability requiring reasonable
accommodations.
Both the EEOC and DFEH guidance make clear that medical
testing such as temperature checks and asking employees directly about symptoms
and diagnoses are allowed. Employers may report diagnosed coronavirus cases to public
health officials, while ensuring that medical privacy is maintained.
While some employers have previously been resistant to
granting telework as a reasonable accommodation, asserting that physical
presence is an “essential job function,” many employers will be hard-pressed in
the future to argue that telework as a reasonable accommodation is an “undue
burden,” since so many of us are now doing it routinely.
Discrimination claims
The COVID-19 pandemic has reportedly resulted in violent
attacks, harassment, and discrimination against Asian-Americans and other
people of Asian descent in workplaces across California, and litigation is
commencing concerning these actionable claims.
An employer cannot exclude certain subsets of workers based
upon protected classifications, due to a concern about COVID-19 transmissions.
An employer can be liable for any failure to take reasonable steps to prevent
and promptly correct discriminatory and harassing conduct. Discrimination based
on association (including marriage or co-habitation) with
someone based on race or national origin is also unlawful. (See DFEH FAQ at 2.)
Workplace discrimination based on marital status is
actionable under the FEHA. As one example, an unmarried worker’s request for
scheduling accommodations due to childcare was denied while her married
counterpart was granted a similar scheduling request.
As plaintiffs’ attorneys, we should also prepare for
disparate treatment litigation around other protected categories including marital
status, pregnancy, and age. The CDC has identified older people and pregnant workers
as vulnerable populations more likely to experience severe symptoms, but
employers still cannot discriminate (including terminate, furlough or withdraw
a job offer) simply because a worker is pregnant or older.
Conclusion
We are all alternating between anxiety, helplessness,
boredom, incredulity, and occasionally, hope. How long will Californians be
sheltering in place? Are we flattening the curve of the pandemic? Will our
favorite establishments still be around a few months from now? And, perhaps
most importantly for our clients – how many of us will be out of work in the
coming months? Our job as workers’ rights advocates is to keep up to date with rapidly
changing government agency guidelines and Judicial Council updates that affect
our clients. They are counting on us to jump every new hurdle as we keep
prosecuting their claims.
Bryan Schwartz has an
Oakland-based firm representing workers in class, collective, and individual
actions in discrimination, wage/hour, whistleblower, and unique federal and
public employee claims. He practices in state and federal trial and appeals
courts, in arbitration, and before a variety of administrative agencies. He is
past Chair of the 8,000+ State Bar Labor and Employment Law Section (now called
California Lawyers Association), and on the Board of Directors of Legal Aid at
Work, and the Foundation for Advocacy, Inclusion and Resources (FAIR), and is a
former Board member of the California Employment Lawyers Association (CELA). He
is a regular speaker, moderator, and conference co-chair on employment law
issues, and a frequent contributor to Plaintiff magazine and other publications.
Jinny Kim directs the Disability
Rights Program at Legal Aid at Work, where she represents clients seeking
accommodation and facing discrimination by employers, educational institutions,
and public entities. She joined Legal Aid at Work as the Félix Velarde-Muñoz
Fellow in 1999-2001 and litigated race, disability, national origin, and gender
cases. She returned as a staff attorney in 2008 following work in Washington,
D.C., and in private practice. As a Georgetown Women’s Law and Public Policy Fellow,
she served as Labor Counsel to the late Sen. Edward Kennedy on the Senate’s
Committee for Health, Education, Labor and Pensions. She also has held
positions at Asian Pacific Islander Legal Outreach; at Schneider, Wallace,
Cottrell, Brayton and Konecky; and at Goldstein, Demchak, Baller, Borgen &
Dardarian. Jinny received her J.D. in 1999 from the University of California,
Davis, and her B.A. in 1995 from the University of California, Berkeley.
Perhaps the most famous heroic
COVID-19 whistleblower is China’s
Li Wenliang, a doctor who sounded the alarm about the
seriousness of the virus in its early days only to be sanctioned by the Chinese
government and later die of the illness. Beyond Dr. Bright, the United States has seen its fair
share of whistleblowing as well,
especially concerning unsafe working conditions. Holding employers accountable
for workplace safety is paramount during the pandemic, given that the
workplace is one of the places where the virus is most likely to spread. Whistleblowing
employees are necessary to bring employer safety inadequacies to light. 
