Preparing For Post COVID-19 Employment Claims

As we all attempt to read the tea leaves in the post (or current) COVID-19 era, we wanted to start a new series on what employers can expect, and do to prepare, for a new wave of employment litigation. Coronavirus has shuttered our Courts for a brief period but the doors are slowly reopening and so will your pocketbook if you are not prepared for the novel claims being advanced in this new era.

A case filed recently in San Diego, CA is a good illustration: In her complaint the plaintiff alleged that she was fired from her job for, “being a mom while she was working from home during the coronavirus pandemic.” Her Complaint alleges causes of action for gender discrimination, retaliation, intentional infliction of emotional distress, and wrongful termination.

According to the complaint, when the COVID-19 pandemic struck, the plaintiff was forced to transition her position as an account executive to remote work with her two young children for whom she had primary child-care responsibilities. The plaintiff claims that her supervisor assigned her several tasks with short turnaround times (even though the tasks were not urgent), intentionally scheduling calls during lunch times when she was feeding her children or putting them down for naps, and reprimanded her when her children could be heard during business calls. According to the plaintiff, her supervisor told her “to take care of your kid situation” and that he was “tired of accommodating” her. After reporting the behavior on multiple occasions to human resources, the plaintiff was terminated with the company citing the pandemic’s negative effect on its revenue as the reason. She is seeking unspecified monetary damages including back and front pay, along with substantial compensation for mental and emotional distress.

One law professor at the University of California’s Hastings College of Law in San Francisco said the pandemic could lead to a large number of similar lawsuits. “We expect an explosion of cases involving family responsibilities, discrimination and specifically discrimination against mothers,” said Professor Joan Williams, who is also the founding director of the Center of WorkLife Law.

These claims may very likely become more common as workforces are reduced. Employee-employer tensions are rising as employees are asked to juggle home and work obligations. What can you do to reduce exposure from employees pulling double duty as parents?

  • Be open to reasonable accommodations: The pandemic has forced many of us to blend our work and home lives and that means continuing to work with your employees to find a balance. That may mean a longer lunch break while children are fed, or an earlier start day so a parent can finish work in time for bedtime stories. Continue to have open conversations with your employees to determine how the critical requirements of the job can be satisfied while making reasonable allowances for parental duties.
  • Communicate leave policies to employees: Working parents often feel as if they're failing at everything -- especially during the pandemic. The Families First Coronavirus Response Act offers some relief for qualifying employees. The act states that a caregiver may take leave "... to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19." Under the act, qualifying parents could receive full or partial pay for up to 12 weeks.
  • Document, document, document: It is undoubtedly difficult times for business and work force reductions are not unexpected. However, that is not a get out of jail free card and you may find yourself needing to defend a decision that appears unsympathetic when examined from the perspective of a parent who is being asked to make a very difficult choice involving the well-being of their children. A jury could very well believe that a layoff under those circumstances was a pretext for a more nefarious motive. Ensure that you comply with best practices and fully document the objective and neutral basis for any layoffs that occur.

It goes without saying that there have been difficulties for employees and employers. However, this is also a meaningful opportunity for you to show your employees that they are valued and understood. Employees who know that they are more than a profit line item to their employer will very likely reciprocate that loyalty. As we like to say, “It’s good for you, it’s good for your employees, and it’s good for your bottom line.” For more information or to discuss any of your employment concerns, please contact our employment attorneys at Hall Griffin LLP.

Authors:

Stephanie M. Stringer, Esq
John A. Cone, Jr., Esq

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