Insight

Nowhere Near Normal

Employers can guard against the ongoing (and sure to increase) risk of COVID-19-related employment claims by using these defensive strategies to mitigate their exposure to them ahead of time.

Yellow Clocks
JM

James T. McBride

January 22, 2021 08:00 AM

Over the last several months, employers nationwide have been required to learn how COVID-19 spreads, the best way to maintain (or return to) a safe work environment, and how to navigate the treacherous shoals of new and existing laws and regulations the pandemic has ushered forth. They’ve also had to contend with a growing wave of coronavirus-related employment litigation and agency actions, particularly wage-and-hour claims. A review of Ogletree Deakins’ COVID-19 Litigation Tracker shows two primary wage-and-hour claims emerging.

The first involve claims under the Families First Coronavirus Relief Act (FFCRA) for violations of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. Both provide paid leave for workers affected by the virus, as well as by school and day-care facility closures. A burgeoning number of suits allege that workers were denied leave mandated by these laws.

The second are more traditional wage-and-hour claims, whose evolution the pandemic has hastened. Of particular importance are challenges to exempt status under the Fair Labor Standards Act (FLSA), which mandates that most employees be paid at least the federal minimum wage, plus overtime pay no less than time-and-a-half for all hours over 40 in a workweek. However, it contains an exemption from both minimum and overtime pay for those who occupy bona fide executive, administrative, professional, and outside sales positions.

For an individual to qualify for the executive exemption, all of these four factors must apply:

  • The employee must be compensated with a salary (as defined in the regulations) at not less than $684 per week;
  • The employee’s primary duty must be managing the enterprise or managing a customarily recognized department or subdivision of the enterprise;
  • The employee must customarily and regularly direct the work of at least two other full-time employees or their equivalent; and
  • The employee must have the authority to hire or fire other staffers, or the employee’s suggestions and recommendations regarding the hiring, firing, advancement, promotion, or any other change of status of other workers must be given particular weight.

When federal, state, and local closure orders were issued this spring, many employers were forced to furlough or terminate a large portion of their workforce and continue operations with managers performing tasks typically done by non-exempt staffers. For example, many restaurants furloughed or laid off their hourly waitstaff due to occupancy restrictions and lockdown orders; in turn, exempt managers began doing those jobs. Plaintiffs’ attorneys are now challenging the exempt status of managers based on these redefined roles, arguing that the managers no longer met the “primary duties” test under the FLSA.

The way employers interact with their workers will remain in flux at least through early 2021.

It’s likely that we’re seeing just the first trickle of what will be a flood of COVID-19-related employment litigation, given the disruption in the courts as well as scientific uncertainty regarding the timetable for a vaccine. One thing is certain: The way employers interact with their workers will remain in flux at least through early 2021. The time remaining will enable employers to adapt somewhat and implement the following defensive strategies to mitigate their exposure to COVID-related claims:

  • ensuring that all relevant policies are up to date, including (but not necessarily limited to) those related to non-harassment, anti-discrimination, anti-retaliation, the Family and Medical Leave Act, the Emergency Paid Sick Leave Act, and the Emergency Family and Medical Leave Expansion Act under the FFCRA (for companies with fewer than 500 employees), interactive process/reasonable accommodation issues, and remote work;
  • educating managers, supervisors, and human-resources professionals about the relevant policies, as well as steps to take if an employee requests a policy dispensation and/or expresses concerns regarding noncompliance;
  • preparing a COVID-19 workplace safety plan, communicating it to all employees, ensuring compliance with it, investigating and addressing any reported concerns, and documenting the investigation and its outcome;
  • conducting (if applicable; note that restrictions on permissible testing exist in some jurisdictions) health screenings, temperature checks, and/or other examinations such as viral testing, oral testing, and oxygen testing; and ensuring compliance with social-distancing requirements, confidentiality of any records created, and the mandates of applicable privacy laws;
  • documenting steps taken after an employee reports a positive and/or presumptive COVID-19 diagnosis, and complying with all state guidelines and CDC recommendations on quarantine time frames and parameters for returning to work;
  • if adjusting compensation, providing notice of changes as required by applicable state laws;
  • if reducing the workforce, providing appropriate notice and ensuring that selection criteria are nondiscriminatory;
  • staying abreast of new laws and all other legislative developments.

Especially as we approach the end of the year, employers should take the opportunity, amid the time they still have, to be sure they’ve adequately mitigated the ongoing risk of COVID-19 employment litigation.

James T. McBride is an employment law litigator and counselor with Ogletree Deakins based in the firm’s Dallas office. James’ experience spans multiple industries with a particular focus on the hospitality industry, restaurants, private equity firms, and manufacturing companies. James provides advice and counsel on designing and implementing proactive policies to assist national employers.

Headline Image: ISTOCK.COM / A-POSELENOV

Related Articles

Phoning It In


by Alyson M. St. Pierre, Ashley C. Pack and Crystal S. Wildeman

It’s not easy for employers to weigh requests from employees to work from afar, even in the wake of the pandemic. Considerations include COVID-19, vaccinations, the Americans with Disabilities Act and the nature of the job itself.

Employer Considerations for Teleworking

Can Employers Legally Require Their Employees to Get a COVID-19 Vaccine?


by Candace E. Johnson

With the COVID-19 vaccine more widely available now, many employers are asking if they can require employees to receive the vaccine and what risks are involved in doing so.

Can Employers Legally Require Vaccines?

Compelled to Compete


by Ashish Mahendru

Courts and legislatures—and now the White House—are taking an increasingly dim view of noncompete employment agreements, a development the pandemic has quickened. What can employers do to protect their confidential information?

Protection for Employers Beyond Noncompetes

Look Out Below


by Mary Jo Larson

Employee 401(k) and other pension plans that include company stock can be a financial minefield. What’s a responsible fiduciary to do to lessen the risk of a plummeting share price—and the risk of a subsequent “stock-drop” lawsuit from aggrieved workers?

Navigating Employee 401(k) and Pension Plans

Paid Leave


by Best Lawyers

Eight attorneys from across the country weigh in.

Paid Leave

Millennials


by Joanna Barsh, Lauren Brown, and Kayvan Kian

Burden, blessing, or both?

Millennials

The Employment Endemic


by Meredith Caiafa and Sarah Greene

The pandemic has had far-reaching effects on employment law since it officially took hold in 2020, but the litigation and lawmaking surrounding it are mutating faster than the variants. Here’s how lawmakers and businesses can keep up.

Employment Law During COVID-19

Measuring Success by Results


by John Fields

Recognized Best Lawyers®* recipient Joseph F. Brophy on how his Firm determines success.

Measuring Firm Success

Texas "Lawyer of the Year" 2022


by Best Lawyers

Charla Truett is honored as 2022 "Lawyer of the Year" in Texas for Immigration Law.

Texas "Lawyer of the Year" 2022

Hybrid Work: Coping with Compliance Consequences


by Gregory Sirico

Communications platforms like Webex by Cisco, Zoom and Microsoft Teams are more popular than ever in the age of hybrid work, but are firms risking compliance for convenience?

Compliances Issues with Hybrid Work

Changes and Challenges


by Megan Norris

As the pandemic ebbs and many people return to the office, midsize law firms in particular must navigate a host of unprecedented questions about costs, culture and client expectations.

Changes, Challenges and Cost of the Pandemic

Forging Bonds, Building Business


by Crystal L. Howard and Lizl Leonardo

As disorienting and occasionally frightening as the pandemic has been, it has also forced lawyers to find innovative new ways to stay connected and do business.

Pandemic Sparks Innovative Ways of Conducting

Staunch Competition


by Andrea E. Nieto, Catherine H. Molloy and Jennifer W. Corinis

On the other side of the pandemic, after record numbers of employee resignation, protecting trade secrets is both challenging and being challenged.

Protecting Trade Secrets During Period of Res

Employment Entanglements


by Justin Smulison

As the United States approaches its third summer against the backdrop of the coronavirus, employers and employees still find themselves in a Gordian Knot of interconnected labor and employment challenges, with no clear way to untangle them all.

Post-Pandemic Employment Challenges Persist

Legal Trends in the Modern Workplace


by Emma R. Schuering and Meghan H. Hanson

Employees are reevaluating their jobs and the workforce, including issues like pay equity, forced arbitration, paid time off, discrimination and other such policies as they continue to navigate a post-pandemic work life.

Legal Trends In the Workplace Post-Pandemic

Courtroom Mastery


by Justin Smulison

Victor H. Pribanic recalled the excitement of returning to the courtroom in late 2021 for a medical negligence case that could help set a new course for Pribanic & Pribanic’s trial advocacy.

Victor H. Pribanic Makes Return to Courtroom

Trending Articles

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez


by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Announcing The Best Lawyers in The United Kingdom™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from the United Kingdom.

The Best Lawyers in The United Kingdom 2023

Johnny Depp and Amber Heard: The Best Lawyers Honorees Behind the Litigation


by Gregory Sirico

Best Lawyers takes a look at the recognized legal talent representing Johnny Depp and Amber Heard in their ongoing defamation trial.

Lawyers for Johnny Depp and Amber Heard

Announcing The Best Lawyers in France™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from France.

Blue, white and red strips

Announcing The Best Lawyers in Germany™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from Germany.

Black, red and yellow stripes

Education by Trial: Cultivating Legal Expertise in the Courtroom


by Margo Pierce

The intricacies of complex lawsuits require extensive knowledge of the legal precedent. But they also demand a high level of skill in every discipline needed to succeed at trial, such as analyzing technical reports and deposing expert witnesses.

Cultivating Legal Expertise in the Courtroom

Announcing The Best Lawyers in Belgium™ 2023


by Best Lawyers

The results include an elite field of top lawyers and firms from Belgium.

Black, yellow and red stripes

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Announcing the 2022 Best Lawyers™ in France


by Best Lawyers

The results include an elite field of top lawyers and firms, including our inaugural Best Lawyers: Ones to Watch recipients.

Announcing the 2022 Best Lawyers™ in France

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Announcing the 2022 Best Lawyers™ in Germany


by Best Lawyers

The results include an elite field of top lawyers and firms, including our inaugural Best Lawyers: Ones to Watch recipients.

Announcing the 2022 Best Lawyers™ in Germany

We Are Women, We Are Fearless


by Deborah S. Chang and Justin Smulison

Athea Trial Lawyers is a female owned and operated law firm specializing in civil litigation, catastrophic energy, wrongful death and product liability.

Athea Trial Law Female Leadership and Success

U.K. Introduces Revisions to Right-to-Work Scheme and Immigration Rules


by Gregory Sirico

Right-to-Work Scheme and Immigration Rules in

Famous Songs Unprotected by Copyright Could Mean Royalties for Some


by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

Destiny Fulfilled


by Sara Collin

Was Angela Reddock-Wright destined to become a lawyer? It sure seems that way. Yet her path was circuitous. This accomplished employment attorney, turned mediator, arbitrator and ADR specialist nonpareil discusses her career, the role of attorneys in society, the new world of post-pandemic work and why new Supreme Court Justice Ketanji Brown Jackson represents the future.

Interview with Lawyer Angela Reddock-Wright

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?