By James Beyer, Esq. Associate Counsel for Broadleaf Results
COVID-19 remains a primary concern for businesses around the country. Though the situation is beginning to improve, how employers decide to manage pandemic-related issues can often spur disputes with employees. To help your business navigate any challenges that may arise, Broadleaf’s Associate Counsel James Beyer provides some workforce management advice and highlights relevant COVID-19 lawsuits that have recently been filed across the United States.
Lesson #1: Always involve counsel in mass terminations
Mass terminations should never be handled without involving your legal and HR departments due to potential legal exposure under the federal Worker Adjustment and Retraining Notification (WARN) Act and other similar state laws. If faced with this circumstance, alert these departments as soon as possible so they can determine what, if any, actions must be taken.
Case in point: Scott et al. v. Hooters III, Inc. – Middle District of Florida
On April 16, 2020 in a federal court in Florida, two ex-Hooters restaurant employees alleged that the restaurant’s unexpected firing of nearly 700 workers in Florida amid the COVID-19 pandemic violated the WARN Act. The full-time employees who were fired were not provided with any advance notice of their termination, and the federal WARN Act generally requires businesses that employ more than 100 workers to give them at least 60-days’ notice of plant closures or mass layoffs, unless they can prove they were caused by “unforeseen business circumstances” or natural disasters.
Lesson #2: Use caution when disciplining employees for social media activity
Disciplining employees based on their social media activity is a complex legal area. Under the National Labor Relations Act, employees are permitted to engage in “protected concerted activity,” which includes speech/social media postings that discuss the terms and conditions of their employment. Involve your legal or HR departments if you have a concern about a worker’s social media activity.
Case in point: King v. Trader Joe’s East Inc. – Jefferson Circuit Court, Kentucky. In April in Kentucky state court, a former Trader Joe’s employee sued the company, claiming it wrongfully fired him for posting about Coronavirus-related concerns in a private Facebook group. The plaintiff alleged he was terminated from his job at the Louisville Trader Joe’s for “inconsistent behavior patterns” connected to his creation of a Facebook group for store employees to share concerns related to COVID-19.
The worker, who had worked for Trader Joe’s for more than eight years, said he noticed the company’s lack of concern and support for its employees when he began suffering symptoms he initially believed might have been related to the virus. He ultimately tested negative for COVID-19, but had another illness.While home sick, the worker created a private Facebook group to communicate with and hear concerns from other employees about Trader Joe’s alleged lack of attention toward employee safety and health procedures during the pandemic. When the worker returned to work, his supervisors asked for a meeting and confronted him with screenshots of his Facebook posts. Trader Joe’s eventually fired the worker, referencing his Facebook activity and a pair of incidents from 2019 as the cause.
Lesson #3: Use empathy when handling employee leave situations
It is important that employees feel like they are heard and that their concerns are genuinely addressed, especially when their worries relate to the safety of themselves and their loved ones. Flexibility is key, and dismissing workers’ concerns out of hand is likely to cause more problems rather than solve them. This is a challenging time for many, so act with empathy towards your employees’ personal situations.
Case in point: Jones v. Eastern Airlines, LLC – Eastern District of Pennsylvania
In mid-April 2020, a former Eastern Airlines LLC employee filed a lawsuit claiming she was fired for requesting paid leave to care for her 11-year-old son after his school closed because of COVID-19. The plaintiff claimed her firing violated the Families First Coronavirus Response Act (FFCRA), a law passed by Congress in March to provide paid sick and family leave to workers affected by the coronavirus. The FFCRA gives workers at companies with more than 50, but fewer than 500, employees the right to sue their employer if it does not afford employees the amount of paid leave required by that law.
The plaintiff requested at least two hours per day to care for her son, along with the ability to work from home. She discussed her child care and leave concerns over the phone with her boss, who was acting as chief human resources official for the company. This employee asserted her eligibility for leave under the FFCRA. The plaintiff formally requested FFCRA leave in an email to her boss and the Eastern Airlines CEO. The plaintiff’s boss allegedly responded that the new law wasn’t supposed to be used as a means to force the company into making decisions that were not in the best interest of the organization. Three days later, the plaintiff claimed she was fired over the phone, and the only reason given for the termination was her boss’s vague reference that she had a conflict with others in the company.
Conclusion: As you can see, COVID-19 raises a host of employee relations issues. How employers respond to questions and concerns raised by employees – especially those related to both employee health and safety and taking leave as required by law – will have a lasting impact on organizations for years to come.
Please note that the information provided in this blog does not, and is not intended to, constitute legal advice; instead, all information available on this blog is for general informational purposes only. Readers should contact their attorney to obtain advice with respect to any particular legal matter.