Law Firms Tracking Wave of COVID-19 Employee v. Employer Litigation

A pandemic is no time to play favorites at the workplace, skimp on personal protective equipment or get too stingy with requests for time off.

Since the beginning of the year, 300 employee vs. employer lawsuits related to the COVID-19 outbreak have been filed in U.S. courts, according to an online litigation tracker posted by the Fisher Phillips law firm.

Kristen Nesbit, a partner in the firm’s Los Angeles office, said the number of cases amounts to a “wave” of litigation. Many of the suits were filed after employers refused to grant requests for unpaid time off, refused to allow employees to work from home or failed to provide adequate personal protective equipment, she said.

“There’s more litigation because employers were in uncharted territory,” she said. “The surprising thing was that litigation was filed so quickly.”

Nesbit said many of the complaints were filed by employees who alleged they were victims of unlawful discrimination or retaliation. Fisher Phillips’ case tracker shows that conflicts over remote work or leave made up 66 of the 300 lawsuits filed as of Wednesday. There were also 66 employment discrimination claims so far. Those two categories were the most common types of cases.

The pace of litigation has been accelerating. Only one COVID-19 case was filed in January andFebruary, seven were filed in March, 64 in April, 94 in May, 125 in June and nine in the first week of July, according to the tracker.

Nesbit said seen a shift in the kind of cases filed over time. Early on, lawsuits alleged that employers were

“Employment litigation is usually a pretty busy area of law regardless of what’s going on,” Nesbitt said. “Now we’ve got COVID-specific litigation and I think we are going to continue to see an increase in that litigation.”

Practicing in Los Angeles, Nesbit is at the crest of the litigation wave. The Fisher Phillips tracker says 50 of the 300 COVID-19 cases were filed in California, which is the nation’s most populous state and some say among the most litigious. Florida had 36 COVID-19 cases, New Jersey 31, New York 22 and Texas 20.

“Employers need to be diligent to make sure their policies and practices are in compliance with the COVID-19 requirements, whether on the state, federal or local level,” she said.

Another litigation tracker posted by the Barnes & Thornburg law firm gives a short summary of each employment-related lawsuit relating to COVID-19. No specific national tally is provided, but the reader can click through summaries that are arranged by state, topic and the date filed.

The Barnes & Thornburg “workplace litigation tracker” lists 25 lawsuits in California, 24 in New Jersey, 23 in Florida and 10 each in New York and Texas. Wrongful termination claims were the most common type of complaint in each of those states.

Scott J. Witlin, a partner in the firm’s Los Angeles office, said 12 attorneys are inputting data into the tracker. He said the firm subscribes to several services that give notice of cases as they are filed. The attorneys open up each complaint and to understand the main allegations and write summaries.

Witlin said in some cases, COVID-19 is mentioned mostly as a way of adding “sex appeal for the jury” to beef up a run-of-the-mill discrimination claim.

For example, a Los Angeles woman alleges that she was subject to harassing comments and surveillance after returning to work after a leave of absence for a pregnancy. She said she was fired after she complained about the way her company was handling COVID-19 health and safety issues.

But Witlin said COVID-19 is also creating new kinds of disputes.

He said COVID-19 had led to a flurry of breach-of-contract cases. Many of those are disputes over a change in the way employees are compensated. Some of those are filed by employees who once made much of their income from tips, he said.

For instance, Jubal Fresh, who says he is one of the most popular radio personalities in Seattle, accuses Hubbard Radio in Washington state of creating a pretext for terminating his contract by accusing him of “inappropriate, unprofessional offensive and insubordinate conduct.” He says actually the company was letting him go because of declining ad revenues due to COVID-19.

Witlin said people are also asserting public nuisance claims against employers, a type of complaint more commonly associated with public eyesores such as junk yards and feed lots. He said plaintiffs in California, Nevada and Illinois have accused employers of failing to provide the proper personal protective equipment.

“Some of the complaints are virtually identical,” he said. “They repeat what the government standards are.”

Witlin said an increase in litigation is to be expected in any situation that causes drastic changes. Workers are concerned because they don’t want to go to a place where they may contract the coronavirus. In times of financial distress, a lawsuit might look like a good option.

He said he believes the wave of COVID-19 cases is just beginning. As the economy reopens, there are more opportunities for friction between employers and employees.

“I think that it has been challenge for everybody,” Witlin said. “I think there is a long term change and we’ve been accustomed to the way the workplace has been organized. Historically there’s been a lot of resistance to that.”