SBS 303: Covid-19 – Top 5 Areas of Litigation

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Hey Compliance Warriors!

If you’ve seen the news, you know there’s plenty of backlashes when it comes to corporations failing to be COVID compliant. Listen this week as Lisa & Mason go over some of the top cases going on right now, and what could have been done to avoid them. Listen on…

Enjoy and until next time, Be Audit Secure!

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Lisa: Today we are again, revisiting a COVID-19 issue, but we’re talking today about the litigation that seems to be on the horizon, or maybe that’s already popping up around the country.

Mason: That’s right. We got some hot topics to hit here as far as, different claims that can be made.

Lisa: We’re going to look at the five top lawsuits that we’re seeing in state and federal courts, related to the effect that COVID-19 has had on the workplace. It’s interesting because this is also unprecedented. Our country has never been through anything just like this in the past. So how they’re all going to play out in court on a non COVID day, we might be able to predict, but on a COVID timeframe. We are just going to have to wait and see on some of these things.

Mason: Absolutely. So, the first one we’re going to talk about is failure to provide a safe working environment.

Lisa: Yeah, and so of course, OSHA is huge during this time and, falling in line with OSHA guidelines, which have been extensive, the CDCs guidelines, your own local, whether it’s your state, your County, your city, those guidelines. They’re similar and very different all around the country. So, we have all these safety protocols and sometimes employers don’t understand, sometimes employees don’t understand. And so, this leads to a conflict with, I’m going to call up OSHA because I think you’re doing it wrong.

Mason: Yep. That’s right. And especially if you’re working in a smaller environment and things like that, these are things you want to look out for because somebody could get disgruntled and then realized they’re not six foot, from a person. And then they’re filing a claim because they’re just mad at you.

Lisa: The deal with wearing masks in some areas it’s mandatory in some areas, it’s not. A business-like Walmart may mandate it where the local area has not mandated it. And there are big arguments about all of that. But at the end of the day if you fire someone because they refuse to follow your policy in an COVID day that’s okay. In a COVID day, is it okay? I mean, it probably is. Okay, but we can’t say that to a 100% certainty.

Mason: Providing personal protective equipment, things like that where needed, obviously the six foot social distancing, masks, if you need them in the office, things like that, depending on how your office is laid out and things like that, it’s very important.

Lisa: High level sanitation. We did a Boss Call on this awhile back and we talked about the fact that, an employee can refuse to work and walk off the job but they have to follow very specific guidelines before they do that. And so, as employers, you need to know what those guidelines are.

Mason: Exactly, and as the employer, you’re protected in a lot of ways, but you’re also very liable in the same amount of ways. So, like there’s a form of job abandonment that comes from somebody who’s scared and doesn’t want to come to work that protects you. But also, if you’re bringing them in to working to make sure your work is a safe place for them to be. If you’re claiming they’re coming back to, or you’re demanding they come back to work, things like that. Then also you want to have good customer and visitor policies as well. That goes along with safe working environment as well. So, if you’re having people come into a store or different things like that, you want to have these policies in place for the visitors. So, it goes kind of both ways there. So, the next one is discrimination claim.


Lisa: Age and disability discrimination are all over the map here with COVID. A lot of times it’s the employer thinking they’re doing the right thing for the person. Like, I think you’re old enough that this might be a high risk for you. So, we’re going to send you home and put you on furlough when in reality that’s age discrimination. And so, someone with a disability, we might say, Oh, but you have, diabetes, which can be considered a disability, or something like that. We’re going to treat you differently based on that, that can be a discrimination claim. So, you think out of the goodness of your heart, you’re trying to give them more allowances. But really what it ends up being in court is that you’re singling them out. There was a 70 year old in New Jersey and there was a state court, that this went to and they alleged that they were denied a work from home accommodation due to the medical condition and age, which he said presented additional risk of complications from COVID.

Lisa: And so again, here we see 70 years old, you’re asking for a work from home accommodation and your job can be done from home and you’re not given the accommodation. So, that brings us to the point of, but you just said not to send them home if they’re 70. No, I didn’t say that. I said, don’t just make it up on your own and go say, Hey, you’re old, go home. No, but if they come to you and they say, I have these preexisting conditions, I, this I’m that I’m 70, I’m afraid I can do my job from home. Could we do that arrangement? Now we’re talking about more of an ADA accommodation. The very thing that can bite you in the bottom is going to be the thing that bites you in the bottom. If you don’t do it, or if you do it. So, like you really need to talk to your local council when these things come up.

Mason: Also, document your conversations with these individuals and have a reasonable approach to every request. Just kind of going in with an open mind and you’re going to set a precedence for a situation, whether it’s you or the employee. Come to a good agreement on what’s good for everybody in the workplace.

Lisa: Go to eeoc.gov and look under their FAQ for COVID-19 stuff because, they have been truly clear and the FAQ is, are very in depth.

Mason: Yep. That’s right. The next point is leave claims.

Lisa: We’ve had a lot of lawsuits that have been filed alleging that employees have been unlawfully, denied sick or family and medical leave related to COVID. Whether it’s FMLA or the family’s first coronavirus response act, which we know is the FFCRA maybe it’s a state or a local paid leave law. And even your own employer, sick leave policies. We have to be very careful that we follow the law for each individual type of leave because there may be very similar, but also very different guidelines that would say yes to one type of leave and no to another type of leave. And when your company has various types of leave all working together at the same time, it might be that you do have to allow some leave, but you need to chop it up and break it down and decide, is this paid? Is this unpaid? How much? how many hours? Because you’re going to have a myriad of different leave laws that may have to inform your final decision.

Mason: Don’t seek termination just because this person’s being difficult.

Lisa: Or you perceive that they’re being difficult. Maybe they just want you to explain their rights to them because they don’t understand, or maybe they understand better than you do.


Mason: Never jumped determination on any of these, because if you unrightfully terminate someone, you could be in way more hot water than just listening to the person and trying to figure it out. So next, is retaliation and whistleblower claim.

Lisa: This is one of those things that we see lawsuits that pop up because somebody was terminated because they’re a problem. Well, I don’t think you’re sanitizing enough, and I don’t think you’re doing this. And maybe you see them as just being nitpicky and troublemaking, but maybe they have a point and if you fire them, then they can go out and say, Hey, I got fired because I was nitpicking the sanitizing. And now we’ve got to bring people in to see who’s right. And who’s wrong. And guess what, no company is doing it, right. No matter how hard you’re trying, somebody can find something you’re doing wrong. So, you’re not going to win this.

Mason: Or situations where people are sick and they’re having trouble and not producing at their fullest performance. And then you’re frustrated with them, but they’re sick and they’re testing for COVID and it’s a big roundabout, but you’re frustrated at the end and you just want to terminate them. We don’t want to jump to those conclusions with these things because retaliation in whistleblower claims can really come back to bite you here. So last, but ultimately not least is wage and hour claim.

Lisa: Wage and hour claims are never in shortage. I mean, wage and our claims on a non COVID day are all over the place and very, very serious. So now we’re dealing with working from home and altered schedules and we’ve got employees who have been reducing wages to try to still make ends meet. So, let’s say that we go across the board and we cut everybody’s pay 20%. Well, normally that would be okay, except what, if you have people that are being reduced below minimum wage? and it’s not always federal minimum wage, it’s state minimum wage. If your state is higher than federal. We have to watch out for those things. You can’t just default to whatever minimum wage you want to choose. And so, we gotta make sure we follow the most beneficial for the employee. However, we also have another thing here we have exempt employees who make a weekly salary and that salary must be guaranteed.

Lisa: Now that salary must be a minimum federally of $684 every week of the year in some States are $900 or a $1000 or more every week of the year. So, if you’re reducing wages, you might be able to reduce that salary, but you’ve still got to maintain that threshold. And you just can’t randomly start reducing salaries. There is a way to do it per the fair labor standards act. You must know all of these guidelines and you have to do it right. Otherwise somebody is going to inform your employee that you did it wrong. And believe me, there’s no shortage of that either. They’re going to go down to the free consultation at the local attorney, and guess what? it’s going to turn up that you did this wrong and then guess what? that attorney’s going to say, well, how many employees does that person have? Oh, well, I wonder if they’ve done it wrong for everybody then. Yeah. And then we’ve got a class action issue brewing and we don’t want that.

Mason: We don’t want any part of that. So really if you must reduce wages and things like that, it goes by kind of almost a person to person basis, but with maintaining a standard. So you want to maintain a standard, so you’re not discriminating against anybody, but also you want to go person to person to make sure if I do this to this person, it’s not going to drop them below minimum wage. But if I do this, do this, kinda thing.


Lisa: Yeah, exactly. You’re 100% true.

Mason: So, it’s all a game of numbers and just figuring out what your local numbers are to wind up with the numbers you have. So, like you said, there’s nothing wrong with this. If your company needs to do it, it’s just, you got to do it the right way to avoid wage and hour claims.

Lisa: Exactly.

Mason: Well, those are just bigger types of lawsuits you want to avoid. And a few tips here and there, but also, we’re not lawyers here, so consult your local council and, whatever you’re trying to accomplish here.

Lisa: 100% not legal advice.

Mason: Absolutely true. Well, unless you have anything else, I think that wraps for this one.

Lisa: No, I’m just hoping that you guys will come out and continue to listen and subscribe and like, and give us that kind of support as well. So other people can hear about us and come listen to Small Business Spoonfuls. And if you’re not yet a member of Boss Calls, man, come on out and check it out, got to helpdesksuites.com.

Mason: And give us some feedback too, if there’s any subjects you’d like us to discuss on here. Obviously not anything heavy cause we save that for our other platforms and things like that. But if there’s any kind of shorter topics, you would like us to kind of do a Q and A on, we were more than happy to do that as well. And we’re thinking about moving this over to like a video, audio medium. So, we can also do that, but also in almost like a Zoom type chat, as well as posted on the website. So, look out for all those kinds of things as well going forward and as always, we appreciate everybody listening and we just hope everybody’s staying safe out there.

Lisa: Yeah, we do. So, thanks again! And until next time I’m Lisa Smith Be Audit Secure.

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