Employment Litigation In The Wake Of The COVID-19 Pandemic
The COVID-19 pandemic has triggered a drastic shift in the employment landscape that may result in a wave of litigation alleging employers violated existing labor laws and the recently enacted coronavirus leave law.
While employees in the greater New York and New Jersey area have legal protections under local, state, and federal law, employment-related disputes are not uncommon. Though the regional economy remains under lockdown more or less, the new normal may see an increase in certain types of employment litigation, such as:
A. Wage And Hour Claims During The COVID-19 Crisis
Regardless of the pandemic, non-salaried workers in New York and New Jersey are entitled to the state’s current minimum wage as well as overtime for all hours worked over 40 per week.
While traditional tracking mechanisms allow employers to determine when workers start, take lunch breaks, leave for the day, etc. are no longer in use, businesses that have not adapted to track clock worker hours offsite could face wage theft claims by workers alleging they worked through breaks. Despite the COVID-19 crisis, employers must be mindful of their obligations under the federal Fair Labor Standards Act (FLSA) and applicable state labor law.
If when businesses begin to re-open, employers may also face potential liability if they require workers to take certain precautionary measures before entering the premises (such as temperature checks) or donning personal protective equipment prior to starting a shift. These activities may be construed as off-the-clock work for which employees must be compensated.
B. Paid Sick Leave Disputes During The Coronavirus Outbreak
The Families First Coronavirus Response Act (FFCRA) requires employers with fewer than 500 employees to provide them with a certain amount of paid time off for COVID-19-related reasons, such as falling ill or caring for a child whose school has closed.
Employers in New York and New Jersey have a legal obligation to determine which employees are eligible and then provide them with the proper amount of paid leave time. Businesses can face lawsuits for: a) Unfairly denying paid leave; b) Miscalculating pay; and c) Retaliating against employees who request paid leave.
C. Safety (OSHA) Violations As A Result Of The Pandemic
Workers in hospitals, food processing facilities, grocery stores and others on the front lines who contract COVID-19 due to unsafe working conditions face an uphill battle. While the Occupational Health and Safety Act requires employers to ensure that the work environment is safe, the law does not allow workers to sue their employers over unsafe working conditions. Workers who fall ill due to the pandemic may be entitled to worker’s compensation, albeit that proving they contracted the novel coronavirus at work can be difficult.