Ed. Note: This is the latest in a series on changing legal practices in various fields.
Imagine one day your phone lights up, your inbox is full, and it seems like every customer you have contacts you at the same time. This describes the situation of labor law attorneys at the start of the COVID-19 pandemic.
“On a typical day, there is a random part of my customer base who will come to my advice, even customers I didn’t want to hear about that day,” said Nicholas M. Reiter, partner and co-chair of the Labor and Working Group at Venable LLP , resides in one of the company’s New York offices. “But when the COVID pandemic occurred, every customer came forward, every customer needed advice, nobody was immune to COVID. Everyone had to make really big decisions. “
These decisions can include workplace safety logs and associated liability concerns, vacation days, layoffs and wage cuts, remote working, insurance coverage, and navigating federal programs. While these decisions were certainly made in other areas of activity, labor lawyers were the focus.
“I don’t think anyone is surprised that there was more demand for labor lawyers as a result of the pandemic,” said Reiter. “We had a variety of new laws and regulations that were quickly enacted at the federal, state, and local levels. Our customers needed advice on these issues and how to deal with other issues like closing offices and maintaining work productivity. Those were quick times for everyone and now we have settled in. “
Safety at work
Perhaps the first thing that mattered to many employers was their commitment to their employees.
According to Gabrielle Wirth, a partner in the Dorsey & Whitney LLP’s California and Montana offices who have handled numerous labor disputes across the country, “an employer always has a common law duty to keep the workplace safe.”
At a recent pandemic liability webinar hosted by her company, Wirth noted that processes become extremely important for companies whose employees must work on-site, especially if one of them has conditions that make them more prone to COVID. Employers may need guidance on appropriate housing for people.
“The most important thing for employers is that they have to conduct the conversation and take the steps,” said Wirth.
Reiter said the work and employment group at his company had advised clients on developing COVID security protocols, from how employees should behave in the workplace to such a detailed risk assessment questionnaire.
“Most of our customers have a questionnaire, a certain number of questions that have to be answered before anyone can enter the work area,” said Reiter. “For example, if people test positive, they shouldn’t go into the workplace, or if they live with someone who tested positive.”
In developing these protocols, attorneys often follow guidelines from federal agencies for disease control and state and local health authorities. In the early days, the guidelines changed from day to day. For example, Reiter said the minimum number of days of quarantine for someone who may have been in close contact with an infected person increased from 10 to 14.
“The pandemic is less than a year old,” said Reiter. “The CDC and state and local departments are still evaluating best practice.”
Katie Pfeiffer, an attorney with the Dorsey & Whitney Minneapolis office, also spoke at the webinar and said she would advise employers’ clients to sign off written rules to their employees about steps to reduce or eliminate the risk of contamination.
“The best course of action at present is to check the temperature of the employees on site,” said Pfeiffer. “It’s not that temperature tests are a sure thing, but they help. There is a lot of evidence to suggest that a rise in temperature greatly increases the likelihood of infection. “
Regardless of how much advice an employer wants to get, there will of course be lawsuits.
“A lawyer for labor law must be a good advisor and advise clients, but also a good litigation lawyer,” said Reiter. A lawyer can help a client develop an employee handbook or create a confidentiality agreement. The same lawyer needs to know how to use these documents as exhibits during a trial.
“If a labor lawyer has the skills to do one thing, he has the skills to do the other,” Reiter continued. “One benefits the other.”
Reiter said he advised clients on unsafe work environment allegations during the pandemic, but he did not see an explosion in suits.
“There have been a few cases where workers sued employers for injunctive relief and said our employer was not doing enough. We want a court order. What we haven’t seen – and what some people were expecting – are many class or similar cases related to actual contagion with the virus. The reason for this is the difficulty in determining the cause. “
Although he doesn’t know if such cases will eventually warm up, “it is reasonable to say that we should have seen it by now.”
According to Shevon DB Rockett, a partner in the Dorsey & Whitney offices in New York and Philadelphia who also spoke at the COVID liability webinar, for a while it looked like a federal liability shield would be included in the most recently passed COVID relief.
“Ultimately, that wasn’t included, but many states have introduced their own liability protection, either through executive ordinances or through statutes or statutes.”
The statutes have common features that cover actual and potential exposure, but do not protect against willful or reckless or willful behavior. “Other than that, government shields vary a lot,” Rockett said, noting that failure to comply with public health guidelines can prevent a company from seeking state liability protection.
Rockett’s colleague Wirth reported that there were a number of demands in March and April, “because many employers could not get their hands on masks and other equipment that they would otherwise have displayed on their employees. So you can also have a separate cause for failure to provide a safe environment. “
Wirth also noted that if employers fail to comply with state and federal regulations, a jury will be very personable to an employee who is making a claim or families who have lost loved ones or have been seriously injured by COVID. Employment lawyers must “remember that the motivation behind a jury is to punish people who have not acted sensibly during that time”.
In addition to helping clients maintain a harmless, safe workplace during a global pandemic, labor lawyers have also been busy helping clients avoid liability traps when it comes to layoffs, layoffs, and vacation days, as well as wage cuts. Quite a few employers had to resort to these measures as the pandemic took its economic toll.
“Our customers were looking for ways to manage costs,” said Reiter. “There was no shortage of RIFs (Force Reduction).”
A major issue during the pandemic was the need to analyze the unforeseen business exemption from the Worker Adaptation and Retraining Act, commonly known as the WARN Act, which is a federal act to protect workers from sudden and unexpected loss of livelihood .
Whether the WARN law applies depends on the size of the RIF and the size of the employer, Reiter said. “If an employer has to make a cut that would otherwise trigger a WARN Act notification,” Reiter said, “the notice period can be shortened if COVID is the trigger.”
Wirth reported that conflicting signals from the federal government didn’t make it any easier. “You have completely confused employers with the various announcements. . . . Of course, when the pandemic started, employers sometimes had to act hastily, which created problems. “
The method of selecting employees to be laid off or on leave is another potential minefield that businesses seek legal advice in.
“You have to make sure that there is no different treatment. That’s a problem, ”Reiter said, referring to some sort of discrimination claim – an allegation that an employer deliberately chose someone based on their characteristics, a violation of the law if that person is part of a protected group.
Disparate impacts are another type of discrimination claim “when a disproportionate number of a certain protected class has been selected for a reduction in force,” explained Reiter.
Sometimes these claims can also arise when a company tries to ensure the safety of its employees. For example, “from a moral point of view, some employers were rightly concerned about their older or obviously disabled workers that they would be more vulnerable,” said Wirth. “But you can’t treat people differently because of their disabilities or their age.”
She emphasized that every action taken by an employer must be an interactive process, not a blanket rule. Businesses need to be very careful when taking human resources measures that can lead to discrimination claims.
Employers have so much to consider that it is no wonder that labor lawyers have been at the forefront of pandemic legal work.
As Wirth noted, companies had to evaluate their processes, investigate their risks, and keep abreast of developments from various government agencies. In other words, good legal advice was crucial.
“Unprecedented” is sponsored by the Practicing Law Institute, which offers a variety of up-to-date offers on labor law topics. These include the Understanding Employment Law 2021 and Employment Discrimination Law & Litigation 2021 programs, as well as the publications “COVID-19 and Other Pandemics: Business and Legal Challenges” and “Employment Law Yearbook 2020”.
Elizabeth M. Bennett was a business reporter who turned to legal journalism while covering the Delaware courts. That blow inspired her to go to law school. After a few years practicing lawyer in the Philadelphia area, she retired to the Pacific Northwest and returned to freelance reporting and editing.