As employers continue to face uncertainty in relation to COVID-19, it is imperative not to overlook the ways in which traditional employment claims may arise as a result of novel circumstances. With so many elements of the public and private sectors either shut down or operating at reduced capacity, employers must manage ongoing staffing concerns. This means that responses to the pandemic—such as layoffs, furloughs, modified workweeks, or pay cuts—are assessed continually based on orders and informal guidance from state and federal authorities. Staffing determinations will be especially fluid as authorities permit the gradual re-opening of non-essential business and the pandemic subsides in a manner allowing all public and private life to return to normal. It is prudent to anticipate a weeks- and months-long process, and this may include a subsequent shutdown if a spike in cases recurs.

Private and public employers should necessarily exercise careful judgment in how to resume operations under such extraordinary circumstances. While employers enjoy wide latitude in staffing and hiring, decisions made now and in the coming months will inevitably be scrutinized with the benefit of hindsight. In particular, employees impacted by periods of unemployment and reduced employment may question the wisdom of particular staffing decisions. This may be especially so in circumstances where all employees are not treated in the same fashion, as in the case of an employer’s complete shutdown. However motivated by legitimate reasons, an employer’s varying treatment of employees will be scrutinized according to laws prohibiting retaliation and discrimination.  

To mitigate employment law risks, employers must remain cognizant of the common avenues by which employees seek relief. This means vigilance in recognizing disparate treatment toward those in protected classes, e.g., race, national origin, religion, disability, age, gender identity, and sexual orientation. This attentiveness must extend to the content of what employees say, to minimize the risk that any adverse employment action can be recast as retaliatory. On this point, for example, whistleblower and false claims statutes protect employees for retaliation for their objections to certain workplace practices and incentivize those employees to make reports to authorities and to file suit. Given the stress—economic and otherwise—imposed by COVID-19 on so many people, it is fair to expect that there will be an increase in disputes over workplace practices. Similarly, with so many personnel decisions made in response to varying workflow, there is a corresponding increased risk of collective action on wage claims.

While the long-term implications of the pandemic cannot yet be understood, employers should not invite foreseeable claims when making necessary personnel decisions. The continuing economic turmoil is further reason to avoid burdensome emergency litigation in the near-term as well as an influx of litigation after operations resume. The complexion of dockets and case law may evolve drastically in the coming months, thus presenting new risks and challenges that are best avoided.

Melick & Porter continues to monitor events, and remains available to guide employers on matters arising under these unique circumstances.