Pondering Potential Post-Pandemic Problems

Can you tell we’re losing our minds? Alliteration calms us. Among the contributing factors to our breakdown is our clairvoyant concern with post-Pandemic pandemonium from new employment lawsuits, some of which have already begun. 

Let’s start with the lawsuits that will result from job losses. Currently, 22 million Americans are unemployed and unless Amazon hires them all, which is possible, there will likely be many left behind when the economy resumes. We anticipate the same kind of lawsuits we’ve always defended, those based on claims of discrimination. You may be saying, even you 2 geniuses know the reason for the terminations: it’s the economy stupid. But we also know that unless you terminated everyone, choices were made and those termed may still say why me. And we know, and you know, that some employers used this opportunity to get rid of that pesky guy — no not Bob from Accounting — that other pesky guy that you’ve been waiting for the chance to dump but couldn’t because he’s in a protected class and you figured doing so in a crowd will less likely to be noticed. And we also know that even though Global Pandemic is a good headline for the defense, we may still need to defend the choices you make. Our advice: let’s have a good answer to why me.

For those employers still working live and in person, we remain concerned about wrongful termination claims from employees fired for refusing to come to work because they’re afraid but have no valid medical reason. Some will claim they did have a medical reason and will produce one after the fact. Others will claim that you did not take adequate steps to protect them and will position themselves as whistleblowers. On April 8, 2020, OSHA issued a reminder that it’s illegal retaliation to terminate an employee for refusing to work in or complaining about unsafe conditions. Under OSHA’s general duty clause, [e]ach employer shall furnish…a place of employment…free from recognized hazards that are causing or are likely to cause death or serious physical harm to…employees. OSHA published a compliance guide worth reviewing. While we can’t prevent a former employee from making up a story, being able to demonstrate compliance with OSHA and CDC guidance may be the ticket to a solid defense. 

That will also help with allegations by employees that they contracted the virus at work due to unsafe conditions. Although such claims may be considered Workers’ Comp, that remains unclear because proving the source of infection will be nearly impossible. Walmart already faces two wrongful death cases from families of employees at the same store who died from the virus, claiming that the chain did not take adequate steps to warn employees that a co-worker tested positive and to implement appropriate safety and sanitizing procedures before and after. We’ve been dealing with that scenario for weeks, so if you have employees test positive, holler so we can walk you through the right steps. 

Another form of wrongful term case we anticipate will stem from ambiguities caused by furloughs, layoffs, temporary layoffs, terminations, firings, reductions in force, dumplings, and Zumpings (more on that later). Ask yourself if your employees who are no longer actively at work actually know their status. Many employers have used the term “furlough” to convey a temporary benching and an expectation of a return to work when the storm passes, although there is no legal significance to the term. Those employees can collect Unemployment Insurance benefits. Others have been told to apply for Unemployment Insurance benefits without any expectations and still others have job protected leave under EFMLEA, FMLA, NYS Paid Family Leave or the newly amended NJ Family Leave Act to hang with children home from school or to care for a seriously ill family member. But what happens though when the sun comes out and there isn’t enough work or income to bring them all back? 

Let’s start with our furloughed friends. If you pull an Emily Latella and say never mind, those employees may have a claim for what fancy lawyers call promissory estoppel, which means someone relied to their detriment on a promise that was not kept. In Jersey, we call it a double cross. Let someone else start your car for a while. If you’ve created an expectation that an employee’s job is secure and then can’t bring them back, the employee could have a legit claim for breach of the promise, but to succeed, will need to show that they passed up other job opportunities. See Amazon reference above. Similarly, if business doesn’t come back, those with statutory job protected leave can also be terminated, but you better be ready to prove that the employee would have been bounced even if they had never taken leave or invoked their statutory rights.

Another group of litigants we anticipate hearing from are those fired on Zoom. While there may not be any specific statutory or even existing common law claim based on virtual (but actual) terminations, those plaintiffs’ lawyers will come up with something to get that ugliness in front of a jury. On March 23, a travel booking enterprise gathered about 100 remote workers on a Zoom meeting that they anticipated was another team-building exercise like they had been doing for several weeks. Instead, their boss announced that they were all fired but only after involuntarily muting their mics. As one observer put it, [w]orkers surreally watched as everyone realized what was happening and began processing in their separate Zoom squares, some soundlessly crying. A mass muted massacre. Not a good look. 

A few days later though, a scooter rental company known as Bird laid (off) its own egg. Bird invited 400 employees to a Zoom seminar in which participants are also muted. In a 2 minute meeting, a disembodied voice, not recognized by the employees, told them that they were fired. So 40% of the Bird force was pushed from the nest by a complete stranger who didn’t even show her beak and wasted 38 free Zoom minutes that could have been used for something productive, like helping the employees cope. When Bird employees began to crow on social media, the CEO, like all great leaders, took to Twitter and wrote: We did NOT let employees go via a pre-recording. It was via a live zoom mtg….b/c we’re all WFH. To which the employees responded: WTF and DID TOO. Seriously, if your only retort is, we didn’t fire 400 people through the pre-recorded disembodied voice of a stranger…she was live albeit invisible, haven’t you already lost hearts and minds? Remember though that was a Tweet from a Bird…boss. And just to add more comic relief, the brains behind Bird also sent a memo to the remaining employees describing the Pandemic as a black swan event (nice bird reference) and referring to its viral impact which, unlike us, he did not mean as a joke and concluded that he was sad to lose so many members of our Bird Family. Apparently the PR department does not WFH. Our advice: if you have to do a mass (or any) termination and think using Zoom is a good idea, we have some thoughts on how to create a softer landing.

So, those are our ponderings pertaining to the post-Pandemic pandemonium that’s poised to produce plenty of problems for ployers (sorry). And BTW, Zumping, the newest way to break up with a romantic partner (via Zoom, of course), is getting some unfair heat in the media. Give Gen Z a break – it is after all a step up from texting.