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Remote Work, Child Care, Mask Enforcement: COVID-19 Is Re-Writing Employment Law

By Kristina Davis The San Diego Union-Tribune

WWR Article Summary (tl;dr) As Kristina Davis reports, the pandemic is "raising all sorts of new questions about what constitutes a safe workplace, or wrongful termination."

San Diego

Taneasha Newsome already felt like she was being passed over for promotions and raises, even as she absorbed more responsibilities over the past nine years as an associate researcher for Axos Bank.

Then coronoavirus struck.

Suddenly, Newsome, a Black single mother, was forced to care for her four children, including two with special needs, while working out of her apartment. The cost of full-time childcare would have exceeded her wages, she claimed. Leaving them with her grandmother, as she had before the pandemic, was no longer an option.

Like other employees of the online company headquartered in La Jolla, Newsome was monitored remotely by a productivity program. But she claimed the program was not able to properly measure the type of work she performed, and it underreported her work hours.

When employees were ordered back to the office, Newsome was granted the ability to continue working from home. But it was getting more and more difficult being a lone caretaker.

"At one point, she even went so far as asking if she should go 'on leave' until her children's schools reopened. Axos rejected this suggestion," Newsome's San Diego-based attorney, Alreen Haeggquist, wrote in a discrimination lawsuit filed against Axos in July. "Instead, Ms. Newsome's supervisors only told Ms. Newsome to 'figure it out.'"

She was fired on May 26 in a Zoom call after being told she lacked productivity, the lawsuit says.

The grim reality is settling in for millions of people that they may be working from home for the indefinite future, or in front-line jobs with exposure to infection. That's raising all sorts of new questions about what constitutes a safe workplace, or wrongful termination.

Demand for employment law advice has skyrocketed since the beginning of the pandemic, and attorneys are navigating never-before tested statutes as well as applying existing labor law — much of it written for mid-20th Century industrial society — to unprecedented circumstances.

"The pandemic is moving faster than the speed of law," said Dan Eaton, a San Diego-based attorney at who represents employers.

The impact, however, could be far-reaching.

More than 400 coronavirus-related employment lawsuits have been filed nationwide, according to a court-filing tracker managed by Fisher Phillips, a national workplace law firm representing employers. The cases are just the tip of what attorneys expect to come in the next several months.

"Litigation surrounding the pandemic is going to last far longer than the pandemic itself," Eaton said.

Work-home balanceLawsuits surrounding remote work and leave are the most common, according to Fisher Phillips.

That will likely continue to grow as schools around the country, including those in San Diego County, prepare to begin the academic year with at-home learning.

A common thread is emerging in a subgroup of litigation involving parents like Newsome who claim they were discriminated against by their employers for having to take care of children at home while balancing a full workload.

The parents claim they either were not afforded flexibility to continue to do their jobs at home, or were discouraged from taking advantage of the Families First Coronavirus Response Act, which requires small and mid-size employers to provide paid sick leave or extended medical or family leave in response to the virus.

The parents were eventually terminated as a result, the lawsuits allege.

After Newsome lost her job, she and the kids had to move out of their San Diego apartment. Now they are staying with family.

An Axos executive told the Union-Tribune in a statement that it is company policy not to comment on the specifics of pending litigation.

"With respect to this complaint, we can say the allegations are false and omit material facts, and we are confident we will prevail once these material facts are presented to the appropriate forum," the statement said. In another recent case, a San Diego woman filed a lawsuit in San Diego Superior Court after she was laid off as an account executive for an insurance firm. Drisana Rios claims her boss disliked the fact that she had to care for her children, ages 1 and 4, and refused to accommodate her request for more flexible work hours.

When she was laid off, the company, HUB International, told her it was due to reduced revenue caused by the pandemic, according to the lawsuit.

Attorneys for HUB denied the allegations in a court filing, saying Rios was let go for legitimate performance reasons, including incorrect and incomplete work product and "behavioral issues" that were exacerbated by working at home. The lawyers added that 88 percent of the women employees surveyed anonymously in June said they were "very satisfied that they were able to be just as productive while working virtually."

Early litigation involving the Families First act will be watched especially closely in legal circles because the measure is brand new, created a few months ago in response to the pandemic. That these lawsuits often include other legal arguments makes them even more complex and unpredictable.

At least one case has already been decided.

In Pennsylvania, a single mother, who worked as a finance executive for a small East Coast-based airline, asked for more flexible work hours and the ability to continue to work at home to care for her 11-year-old son and keep him on track with his school work, according to the lawsuit, filed in March.

After several conversations with her employer she requested to go on paid family leave, which had just been announced by the government. She was fired days after.

Attorneys for the airline argued that the case should be dismissed because the family leave act didn't actually go into effect until a week after she was fired.

A federal judge agreed, dismissing the lawsuit as "moot" after considering the airlines' arguments. He did not provide further explanation for the decision.

Claims of discriminatory termination have also spread beyond family situations, with workers in protected classes — especially those who are pregnant, disabled or older — saying they were let go under the guise of falling revenue.

"People are using COVID as an excuse," said Haeggquist of the plaintiff's firm Haeggquist and Eck. "Businesses are struggling. I'm not denying that, but every industry is struggling. It doesn't give you a pass to discriminate against people."

Kristen Nesbit, partner and co-chair of Fisher Phillips' California litigation practice group, said she's seen a concentration of these kinds of cases within the retail sector.

"The business was forced to close, the business had to make difficult decisions on laying off employees," said Nesbit, who is based in Los Angeles. The decisions aren't ones that companies take lightly, she said.

"Employers care about their employees, care about their safety, well-being and economic welfare," she said. "We find employers want to be compassionate but also have to pragmatically deal with the impact of COVID on their business and how that impacts their employees."

Returning to the worksiteBeing back in the workplace also comes with a minefield of potential legal challenges.

Attorneys like Haeggquist have been fielding questions nonstop. "We've been getting a ton of calls. A lot on testing. Like 'My employer is requiring a test, is that a violation of privacy? How can they allow this?'"

The answer: Yes, coronavirus testing can be required, but the employer must also pay for the time to take the test, she advised. Antibody tests, however, cannot be required, she added.

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