Seyfarth Shaw Report
Terminations are the top reason for virus-related lawsuits, according to a workplace class action litigation report from the Chicago-based law firm Seyfarth Shaw. The trends identified in the report determined that wage and hour claims continue to be the “sweet spot” for worker-side attorneys, with plaintiffs winning cases 84 percent of the time, just up a few percentage points from last year. After termination complaints are employees’ concerns about on-the-job safety, followed by grievances over family leave, disability discrimination and wage and hour issues.
Termination examined by industry showed health care employees had filed 198 lawsuits followed by 128 claims related to business services and 99 in manufacturing.
As soon as the pandemic hit, employers had to adapt to new and updated laws such as the Family and Medical Leave Act that expanded from the passage of the Families First Coronavirus Response Act. It set a paid sick leave requirement for employees that triggered illegal termination and wrongly denied leave claims.
COVID-19 Discrimination Issues
Anti-discrimination laws have been top priority. In early April, soon after the pandemic swept the country, the U.S. Equal Employment Opportunity Commissions (EEOC) released a coronavirus and COVID-19 guideline urging employers to “implement pandemic-response measures with an equal hand”. For instance, it explained to employers how to measure applicants' body temperatures, and most importantly, employers must do so for "all entering employees in the same type of job," regardless whether an individual has a disability.
Also early in the pandemic, the EEOC issued a statement about unlawful national origin and race discrimination against Asian Americans and people of Asian descent in the workplace.
Future Litigation During Covid
The Biden administration may ramp up stricter safety measures and HR Drive reported that the president has already asked the Occupational Safety and Health Administration to reconsider its decision to skip emergency coronavirus standards. And along with the vaccine, employers must figure out how to handle employees who decide not to have the vaccine. As well, employers should have a plan to make the transition away from telecommuting and keep in mind potential discrimination claims.
Seyfarth said the EEOC, the U.S. Department of Labor and other federal workplace enforcers were reluctant in 2020 to litigate in 2020 under the business-friendly Trump administration.
In its report, Seyfarth “anticipates that that the tide of workplace class action litigation will continue to rise in several key areas such as discrimination and workplace bias, wage & hour, as well as on the health & safety front… Employers are apt to see these workplace class actions expand and morph as businesses restart operations in 2021 in the wake of COVID-19, particularly as courts roll out a patchwork quilt of rulings."
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While "The latest class action litigation statistics show that motions to compel arbitration have become an increasingly effective defense to class action lawsuits since Epic Systems," the report also said that, under Biden’s pro-worker administration, Epic Systems could face legislative attacks. "Along with the arbitration landscape, the shift in administrations is likely to bring increased regulation of businesses, renewed enforcement efforts, and policy changes at the agency level that will result in efforts to abandon or overturn pro-business rules of the Trump administration.”