Episode 82: COVID-19 Litigation Trends, Takeaways

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chambers Executive Vice President and General Counsel, and we are honored today to have Kristin Nisbett on the podcast. Kristin is a partner with the law firm Fisher Phillips in their Los Angeles office, where she specializes in employment litigation and regularly counsels clients on current employment law issues. Welcome, Kristin.

Thank you, Erica. Thanks so much for having me.

Oh, it's such a pleasure. And you know, Kristin, we noticed and to let our listeners know that you were recently featured in a news article that discussed employment law litigation that involved what other than the COVID 19 issue and situation. And you know, that certainly got our attention. And when we reached out to you, you were gracious enough to agree to come on the podcast and share your expertise and perspective of what you're seeing right now with litigation surrounding COVID 19.

Absolutely. It is something that I think all employers are worried about in light of all the other concerns that employers and employees have during these uncertain times. But certainly employers are definitely grappling with how to execute and carry out the right thing and hopefully avoid litigation in the future. And what we have found with our firm's litigation tracker is that even though we are not out of the COVID pandemic yet, Covid litigation is steadily being filed. And in fact, last month it had increased by 43% from the previous month. And it seems like it's holding steady so far based on the data that we have.

Wow, that's a significant jump when you're comparing month to month on such a new cause of action, so to speak, with COVID 19 being so novel.

Right. And what we find is that it's more, it's a hybrid mix. So the top four types of, you know, we call Covid litigation matters that we're seeing in California are employment discrimination, work from home or leave law conflicts, claims of unsafe workplace or lack of PPE or personal protective equipment, and retaliation. But what we see in terms of the two highest, which is employment discrimination and leave law conflicts, is that it usually stems from an employer's decision related to decisions related to reducing employees hours or selecting certain employees for layoff or furlough over others. And the employees are basically mixing in the COVID along with a claim of they were selected based on their protected category or that they oppose how the company was implementing safety measures, social distancing measures in the workplace.

So when we're talking about the employee discrimination, are we talking about, you know, one of the examples that we often use is the pregnant employee, because there's so many protections that go along an employee who's pregnant. And I know that on the labor law helpline that Cal Chamber has, you know, we always receive questions regarding accommodations for those that are pregnant. And when we saw furloughs and layoffs happening, there was always a concern about those that are in protected classes and a pregnant employee is one of them. Have you seen litigation surrounding employees who were pregnant at the onset of COVID and then being laid off and claiming that they were laid off because of their protective class?

Yes, there have been a few cases filed where employees have alleged that because of their pregnancy they were laid off or because of a disability. Really, we see a lot of because I have a disability or I was on already on an improved leave of absence under FMLA or cfra, but then I was selected for furlough or layoff. And the law is very clear in terms of, you know, just because you're on a protected leave of absence, that doesn't 100% shield you from being a part of a reduction in force or a furlough. However, you know, the company has to use legitimate, non discriminatory objective reasons to justify why a person in a protected category was selected for layoff. And one of the things that I find is that it's very important for employers to really go through that process when they're making those difficult decisions about who they're going to keep on versus who they're going to let go or even who they're going to keep on full time versus part time. They really need to identify the key objective criteria and go through a complete analysis of all potentially impacted employees to ensure that when they do select people for layoff, they can justify it based on those objective factors, because otherwise that's going to open the door to litigation. You know, the first thing we see a lot of times is that, you know, employees who have been subject to termination through a RIF or layoff, you know, they say, well, look, I had more seniority than, you know, the five other people who got to stay. And I think that because, because I was there the longest, I was laid off because of my age or because of my race or because of my disability or because of my pregnancy. Those are things that a natural gut reaction for someone who was terminated may feel. And so it's important that the company has a clear laid out in place objective criteria and they clearly document the process that they went through now versus versus waiting until litigation is filed to then try to scramble and gather all the data necessary to justify their decision.

I know that for some of our listeners, they're probably just sighing, going, you know, we had a hard enough time trying to scramble and get everything, all our ducks in the row when the shelter in place, orders were in place, when we were having to go through this shutdown. You know, I'm sure for many of them, it's really hard to even conceive that some of these lawsuits are filing. But correct me if I'm wrong, Kristin, it doesn't take much to file a lawsuit in California. And when you said open the, open the door, it's really easy to just crack the door open and then off to the races we go.

While you sound like most of my clients in California, which is true.

It does not take much for anyone to file a lawsuit. All they have to do is basically contend that they had a good faith belief that they suffered an adverse action and it's off to the races with filing a lawsuit. And that's why it's so important that employers have clear documentation of their decision making process. Because, again, you never know where the litigation is going to come. But you know, when you have to start making really difficult decisions where, you know, some get to remain and some are selected for something that negatively impacts them personally, financially, that more likely someone's going to file a claim. And so you want to. Even though I know it's very burdensome for employers to do, it's not. I'm not saying you have to write a mini novel, but you certainly want to have something documenting the reason why you had to make an adverse decision that impacted some and not others, the criteria that you relied on to do so. And then you can kind of identify those who were selected and those who were not. So the employer can also do a gut check when they do look at those who were selected for an adverse action and those that were not. And they can look to see, okay, just me as an objective person looking at this data. If I was sitting on a jury, you know, if a lawsuit got to that point and a jury saw this data, would they look at it and gasp and say, oh, no, clearly we can see from this that you were selecting more men for layoff or for reduction in hours over women, or you were selecting, you know, there were, you know, all the folks that were selected to be laid off were over 40 versus everyone who got to stay was under 40. Those are things that employers can do right off the bat and then can kind of go through a further analysis of the decisions to make sure that it doesn't rise to the level of discriminatory motive, if it ever has to go before a court or a jury.

That's excellent advice and counsel to give to our listeners today. I think that's so true and so dead on. And just a reminder that, like you said, you don't have to write a novel. You just need to make sure that you've got the evidence, so to speak, on paper to demonstrate that you had a legitimate business reason for making the decisions that you did. You also mentioned, and this actually piqued my interest, that you're seeing litigation surrounding leave requests that were, I'm assuming, were denied. And I find it fascinating because, you know, we have the Families First Coronavirus Response act that was passed very quickly, went into effect very quickly. The Department of Labor continues to update their FAQs. We're in the 90s, maybe close to 100 now. And it's just so frightening to think that we're seeing litigation already regarding leave when the leave law is so new. What are some of the things that you're seeing related to the leave law?

So what we are seeing is it's a hybrid. So usually someone is alleging gender discrimination or retaliation along with violate because they weren't accommodated, reasonably accommodated, in terms of their request for a leave of absence. And it's not necessarily related to the family's first act. Yet we have not seen a lot of that litigation, but instead the lack of flexibility or placing increased demands on employees that makes it hard for them to perform their jobs, given the fact that they're teleworking, that they have their children at home or that they're caring for, you know, family members that they typically wouldn't have to do if they were going into the office every day. So that is the trend that we're seeing. We anticipate that we're going to be seeing, as the schools are, for the most part, all of the schools in California are going to be virtual learning. We anticipate we're going to see a lot of challenges related to requests for leaves, requests for accommodations. You know, and if an employer is not willing to be flexible, it's certainly going to they're going to see a lot of rise in claims related to, you know, failure to accommodate or, like I said, gender discrimination. Because if there's, you know, typically the burden of childcare and schooling will fall on the mother, unfortunately. Still now, even though the trend is swaying somewhat towards the middle, where it's becoming more balanced, 50, 50, it still traditionally falls on the mother. So that female employee is a mother and is also working. You know, it's going to be very difficult if an employer is scheduling staff meetings at noon or 12:30, when we know that's typically when that mother's children who are going to be on virtual learning, they're going to have their lunch, and the mother's going to be responsible for having to have that lunch ready. And so employers are going to really have to start thinking about differently how they schedule meetings, how they anticipate their workers are going to be able to respond to deadlines. Otherwise, there's going to be a likelihood that there's going to be an increase in gender discrimination, harassment, retaliation claims simply because you're setting standards for working parents that are going to be difficult to meet. Once we start doing more virtual learning as the school year progresses.

Yeah, we're concerned about the same issue that the virtual distance learning is going to present for employers and employees. And as we know, the labor and employment laws, even if we look beyond discrimination and accommodation, wage and hour laws are going to come into play too, when we've got parents that are employees that are trying to work, trying to help their kids. I think it's going to be a difficult road for employers. And I would love to have you back on the podcast to continue discussing, you know, what the school leaves are, you know, what impact they're having on some of the trends that you're seeing too, because unfortunately, I think that we're going to see a lot more. Well, this has been so fantastic, and I so appreciate you being here. I think we could talk for hours about this issue, unfortunately. And as we've been talking and everybody, I think throughout the country, particularly in California, COVID 19 has certainly required us to be more nimble and flexible. And that's one of the big messages we've been trying to convey to our members, is to be as flexible as possible, knowing that we're all going through this for the first time. But with that being said, what would be one last piece of advice or helpful nugget that you could leave our listeners before we close out today?

You know, I always say it's the adage of, you know, you want to make sure that you treat your employees the way you would hope to be treated in the same situation. And what that means is that sometimes you have to take a stop and pause look, and not employers can't be emotional, but really want to take it from a practical standpoint, because as we anticipate, litigation is going to rise. It may not be tomorrow, but we're in the early stages of COVID and because the laws are constantly changing, it's really important. As you said, you have to be nimble, flexible and practical. Because when you have to explain yourself to a fact finder, whether it's to a court, to an administrative law judge, to a jury, you want them to be able to feel that these decisions were very difficult, were very thought out, and these were practical decisions that were made and are simply not saying, well, I'm going to write someone up or I'm going to terminate this person because I feel like they're taking advantage of the paid sick leave or emergency fmla. But genuinely say, we worked with this employee, we tried to accommodate them, we asked them to follow our policies and protocols, and it was only then where we have exhausted all the reasonable, practical things that we could do as an employer that we had to make this difficult decision.

Oh, that was awesome. That was so well said. Thank you so much. And thank you so much for being on our podcast today as our guest. I really appreciate it. This was extremely helpful and hopefully our listeners will find it interesting and also insightful as well.

Thank you so much for having me, Erica, and I really enjoyed talking with you too.

And thank you all for joining us on the Workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.