Attorneys predict employment litigation cases will gain traction post-pandemic

While the COVID-19 pandemic put employment litigation matters on hold last year, local attorneys expect it to not only resume, but pick up substantially as employment issues related to the pandemic come to the forefront in the short-term.

Jeffrey Calabrese, a partner with Harter Secrest & Emery LLP, says a number of factors are contributing to an increase in employment litigation, including a backlog of cases that were in the works pre-COVID but put on-hold when the pandemic hit, as well as COVID-related claims and even a charged political environment that could spill into the workplace.

In addition, new state rules related to mandatory sick leave that went into effect in January is another new item that employers will have to consider.

“There are a number of challenges now that employers may not have had to focus on over the past year,” Calabrese says.

Employment litigation is a lawsuit in which an employee sues an employer, or an employer is sued because of an employment-related issue.

At issue may be claims of discrimination or harassment. Other types of employment litigation may involve pay, overtime or scheduling.

Employment litigation can also include an employee’s claim of illegal action under whistle blower protections, violations of workplace safety or issues related to benefits such as insurance, workers’ compensation or pension.

Having more people back in the office after spending nearly a year working remotely could increase the chances of litigation, such as discrimination claims, for instance, since people are now back to being face-to-face in an office, Calabrese adds.

In response, he suggests employers review a company’s rules and policies with its managers and supervisors to get everyone back up to speed after an unusual year.

COVID-19 is already having an impact on employment litigation, he says.

Since the onset of the pandemic, there has been a class action lawsuit filed in Florida by former employees at a restaurant chain alleging violations of the Worker Adjustment and Retraining Notification Act, which requires employers to provide a certain amount of advance notice of layoffs.

Calabrese says such claims related to the WARN Act could continue to be at the forefront for company leaders post-pandemic.

Stacey Trien, a founding partner at Adams Leclair LLP, says there have also been class action lawsuits related to safety issues during COVID-19, including one in New York against Amazon that claims the employer failed to take reasonable precautions to protect its workers during the pandemic.

A similar suit was filed at a meat packing plant in Canada.

Trien has not seen cases to this scale locally, but she is fielding more questions from employers since COVID-19 began and has been working with employers on a case-by-case basis.

She has also seen employers fined for failing to comply with state regulations, namely when it comes to rules from the Occupational Safety and Health Administration.

With the changing regulations it is essential for employers to stay abreast of the rules and make changes accordingly, she notes.

Being able to show that employers are acting in good faith could help them if a case is brought up against them, she says.

Trien believes issues such as requiring COVID-19 vaccinations for workers could bring up challenges for employers.

Currently, employers can mandate a vaccination, but there are exceptions, such as employees who have certain disabilities or religious objections do not have to participate in mandatory vaccine programs.

Another issue that employers may want to consider is providing paid time off for employees after getting the vaccination shots in case they have side effects as a result of the vaccine and are unable to work in the short-term.

Trien also says discrimination cases that employees may have been considering pre-COVID may spike in the coming months.

Those employees may have decided against taking action earlier due to court delays or because of their own situations during the pandemic, but with courts opening up and more people getting vaccinated they may feel more comfortable pursuing the option at this time.

“That could open the flood gates,” she says.

Stephanie Caffera is a partner with Nixon Peabody LLP who works with management in various sectors on employment-related laws and regulation. She says employment litigation always tends to increase in a bad economy.

When someone can get another job with relative ease, they are more likely to do that rather than stay somewhere where there are issues.

The same is true when an employee is laid off or terminated, she says.

During times of economic prosperity, employees in those situations are more likely to find and take another job and move on rather than pursue legal action against an employer.

That is not the case when the economy takes a downturn.

“In a bad economy it can be more difficult to job hop,” she says.

The current economic downturn due to the pandemic is no exception, and COVID-19 has brought on a whole new layer of litigation, Caffera says.

Areas that could be a challenge for employers range from employees taking leaves of absences from work for various personal reasons to perceived gender inequalities in the workplace, especially for women who may have additional duties at home, due to lack of childcare or the need for help with remote schooling, during the pandemic.

Moving forward, policies surrounding vaccination policies, as well as remote work could continue to play a front and center role in employment litigation, she says.

Caffera recommends employees tread cautiously as people begin to turn a corner and get closer to a new normal. She suggests employers not be too quick to make decisions about policies related to issues such as remote work, due to the fact that situations vary by employees.

Employers also need to be up-date on state and federal requirements when it comes to safe workplaces.

The Biden administration has talked about instituting an OSHA rule related specifically to COVID-19, so employers should be aware that may be on the horizon and prepare to comply for any changes that may occur as a result.

As guidelines change, employers need to keep up, making sure they are following the rules related to personal protection equipment and social distancing, for example, Caffera notes.

“There are a lot of minefields,” she says.

Andrea Deckert is a Rochester-area freelance writer.