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.”
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.
Other frequently asked questions surround the legal obligation for both employee and employer to disclose positive COVID-19 cases. (The general rule is to keep the workforce apprised of new positive cases to maintain public health, but the employer should not specifically identify those infected.)
Can an employer send someone home who is displaying symptoms? (Yes.)
Can an employer keep employees 65 and over — an age group identified as being at higher risk for serious illness — out of the workplace, with or without pay? (No, that would be discrimination, according to government guidance.)
“You typically can’t ask someone about a disability, can’t require testing,” Haeggquist said. “But in a global pandemic we are making exceptions.”
“Government agencies are trying to get these things interpreted as well,” she added.
Lawsuits also reflect evolving definitions of a “safe workplace.”
Nesbit has seen a number of health care workers especially suing on claims of unsafe work practices or conditions, such as a lack of personal protection equipment. And there are also claims of wrongful termination for complaining about such conditions, including a nurse in Chicago who filed a whistleblower suit.
But the legal threshold is high for employees who refuse to return to the workplace after stay-home orders are lifted.
Under the law, the threat to personal safety must be immediate or imminent. “Requiring employees to work with patients in a medical setting without PPE at this time may rise to this threshold,” according to Fisher Phillips’ guide for employers. “Most work conditions in the United States, however, do not meet the elements required for an employee to refuse to work.”
Two former guards at the Otay Mesa Detention Center sued the private prison company CoreCivic at the end of April — as COVID-19 continued to spread throughout the facility — accusing the operator of failing to provide a safe work environment, including not providing officers with masks or allowing them to wear their own. Both plaintiffs, who have underlying health conditions, said they were forced to quit over the conditions.
Attorneys for CoreCivic argued that neither former employee alleges they were subjected to unreasonably harsh conditions in excess of those faced by their co-workers. Also, neither allege that they refused to do to anything that was prohibited by public policy, or that they were retaliated against, said the company’s lawyer.
The attorney for the guards, Joshua Gruenberg, responded to that argument simply: “This is not the law.”
Another thread of legal action will likely relate to businesses that have defied public health orders — such as serving customers indoors when it is prohibited or not adhering to mask rules — in turn placing employees in potentially unhealthy conditions, said Eaton, who also writes a regular Union-Tribune column on employment issues.
Republicans are pushing for broad coronavirus liability protection for businesses as part of a new relief measure, something Democrats say would take away recourse for workers to fight unsafe conditions.
And workers have a new hazard to contend with: policing customers who refuse to wear a mask.
“Are employees who are given these assignments being provide with the tools to prevent injury to themselves, specialized training in de-escalation?” Eaton asked. “PPE takes on a different gloss when you are having to protect yourself from belligerent customers.”
Eaton pointed to one incident reported recently of an 18-year-old working at a Kansas barbecue restaurant. He asked a man who’d walked in without a mask to put one on, and the man refused and displayed a gun on his hip.
“My first thought was, I work in customer service and this is really what’s going to happen?” the worker told The Kansas City Star. “All we’re asking is that you wear a mask for a couple of minutes. We could have taken your order outside if you didn’t want to. But you go into an air conditioned area without a mask on, and if I tell you to wear one, you’re going to shoot me? Wow. I make $8.50 an hour, plus tips — for this?”
The mass move to work from home has created another friction point between employee and employer: the remote workstation.
What seemed doable for the short term — laptops, couches and kitchen tables — is now wreaking havoc on backs and co-living situations.
Under California law, it is up to the employer to determine what is “reasonable and necessary” to do the job and either provide the equipment or reimburse for it. What that means depends on the job.
A computer would seem necessary for most office work, but what about a monitor or printer? Same goes for phone service and teleconferencing access, but what about high-speed internet? An ergonomic chair?
It’s an issue that Eaton recommends employers get on top of, especially as the pandemic stretches on.
“The duty to accommodate doesn’t go away just because the worker is working remotely,” Eaton advised. “In some ways it could be aggravated.”
Distributed by Tribune Content Agency, LLC.