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Civil Litigation FLASHPOINTS July 2020

July 15, 2020Print This Post Print This Post

Jennifer M. Huelskamp, Freeborn & Peters LLP, Chicago
312-360-6499 | E-mail Jennifer M. Huelskamp

Employment Litigation as Illinois Returns to Work

When the COVID-19 pandemic began, many employers were forced to furlough or lay off some or all of their workforce, resulting in a variety of employment lawsuits. As Illinois moves forward with its reopening plans, it is clear that pandemic-related employment litigation is just getting started. As such, we can expect to see more litigation stemming from a variety of claims. This article touches on four current areas of concern: (1) the federal Worker Adjustment and Retraining Notification Act (WARN Act), Pub.L. No. 100-379, 102 Stat. 890 (1988), and state “mini-WARN” Acts; (2) employee health and safety claims; (3) wrongful termination claims; and (4) discrimination claims. In addition, in order to avoid these and other types of employment litigation, the article discusses how employers should review and revamp employee policies and procedures to comply with new rules and regulations.

WARN and Mini-WARN Act Litigation

The federal WARN Act requires most employers with 100 or more employees to provide 60 calendar days advance notification of plant closings and mass layoffs. 29 U.S.C. §§2101, 2102. In addition, Illinois has its own mini-WARN Act, 820 ILCS 65/1, et seq., which requires employers with 75 or more full-time employees to give workers and state and local government officials 60 days advance notice of a plant closing or mass layoff. 820 ILCS 65/5, 65/10. Failing to adhere to this 60-day notice could lead to claims for backpay and penalties. Although COVID-19 creates special circumstances under which employers are forced to close or significantly reduce their workforce, the Act still applies.

We have already seen litigation involving the federal WARN Act stemming from COVID-19. Two recent cases are in federal court in Florida. The first case is a class action lawsuit filed against a popular restaurant chain due to COVID-19-related employment decisions. In Scott v. Hooters III, Inc., Case No. 8:20-cv-00882 (M.D.Fla. Apr. 16, 2020), former employees alleged their employer failed to provide advance notice of layoffs of hundreds of employees, as required by the WARN Act. The complaint stated the company “could have but failed to evaluate the impact of COVID-19 . . . as evidenced by the fact that it gave no advance written notice whatsoever.” The plaintiffs also alleged the defendant should have relied on the Paycheck Protection Program (PPP) to secure funds that could have prevented some or all of the layoffs.

A second Florida case was recently filed against a well-known rental car company, in which a former longtime executive alleged the company failed to provide the required 60-day notice before conducting a mass layoff. Benson v. Enterprise Holdings, Inc., Case No. 6:20-CV-0891 (M.D.Fla. May 27, 2020). The plaintiff stated the defendant “failed to provide as much written notice as was practicable under the circumstances surrounding the COVID-19 pandemic, and also failed to provide a statement for the basis of reducing the notification period to zero days advance notice.” The complaint continued: “Defendants could have but failed to evaluate the impact of COVID-19 upon its employees days prior to the mass layoffs.” The plaintiff also stated that the defendant furloughed employees several weeks earlier, suggesting the defendant had the information available to point to a mass layoff and therefore was able to provide appropriate notice but failed to do so. As in Scott, supra, the plaintiff also pointed to the PPP, stating the employer failed to secure funds that could have prevented some or all of the layoffs.

Other lawsuits have been filed elsewhere in the country, at both the state and federal level, alleging employers failed to give the required notice when workers were laid off due to COVID-19, and this trend is likely to continue.

In response to the COVID-19 pandemic, the Department of Labor’s guidance was recently updated to state that employers must still give as much advance notice as possible even when the “unforeseen business circumstances” exception to the WARN Act applies due to COVID-19. Likewise, the Illinois Department of Labor confirms the Illinois mini-WARN Act still applies when a covered employer is forced to close or significantly reduce its workforce in the form of a mass layoff due to COVID-19. Employers should consider carefully whether mass layoffs or plant closings are necessary and provide as much advance notice as possible, especially amidst the COVID-19 pandemic.

Health and Safety Claims

Workplace health and safety claims are also likely to increase in the current climate. To prevent costly litigation, Illinois employers should stay up to date with all emergency rules related to COVID-19. For example, in early April, an emergency amendment to the Illinois workers compensation rules made it easier for workers at essential businesses to claim workers compensation related to COVID-19 when they became sick on the job. The amendment created a rebuttable presumption that any first responder or frontline worker exposed to COVID-19 was exposed while at work. In late April, however, the Illinois Workers’ Compensation Commission withdrew the rule after an Illinois circuit court granted an emergency request that the new rule be blocked. Thus, employers are no longer forced to defend against this rebuttable presumption. Employees may still pursue workers’ compensation claims if they contract COVID-19 but will be required to use the same standard employed in any other workers’ compensation claim.

Employers must be mindful that guidance from public health authorities will continue to change and evolve as the COVID-19 pandemic continues. Therefore, employers should follow the most current information on workplace health and safety and should tailor all return to work policies and guidelines with these rules in mind.

Wrongful Termination Lawsuits

We are also likely to see a rise in wrongful termination lawsuits as the effects of COVID-19 continue to impact the workplace. Adverse employee actions, including terminations, taken during and as a result of the COVID-19 pandemic will likely raise red flags with many employees and, in turn, with many courts. In Illinois, a lawsuit was recently filed by a Chicago nurse who claims she was fired after warning coworkers that the masks provided by her hospital were inadequate protection against COVID-19. Mazurkiewicz v. Northwestern Memorial Hospital, Case No. 2020-L-003511 (Cook Cty.Cir. Mar. 23, 2020). The complaint alleges the plaintiff was fired from her position the day after sending an e-mail to colleagues stating that N95 face masks are more effective than the masks given out by her employer. The plaintiff alleges violations of retaliatory discharge as well as retaliation under the Illinois’ Whistleblower Act, 740 ILCS 174/1, et seq.

Employers are cautioned to carefully investigate any and all workplace complaints, especially amidst the current pandemic, in order to avoid claims of wrongful termination. Employers should also collect and preserve detailed records of all complaints filed, along with all investigation materials. When terminations are necessary, employers should document all reasons for termination and make those reasons clear to the terminated employee. Finally, employers should maintain detailed records to support that no termination decision was related to an internal complaint.

Discrimination Lawsuits

Discrimination claims relating to COVID-19 are also predicted to rise. Federal and state law protects employees against discrimination in the workplace, which can take many forms, including stereotyping, unwarranted poor performance reviews, failure to promote, demotions, and wrongful terminations. Caselaw does not require that an employee have a “smoking gun” in order to bring a discrimination claim, making a prima facie case easier to establish in these cases. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817, 1824 (1973). After the employee establishes a prima facie case, the burden shifts to the employer to provide a legitimate reason for the adverse employment action. Id. Certain employees will undoubtedly view terminations and other employment decisions amidst the COVID-19 pandemic as an excuse or a cover-up for unlawful discrimination and adverse employment actions on the part of their employers. Thus, employers must ensure they use objective means when choosing which employees are subject to layoffs and should retain detailed records of all terminations and layoffs, including the reasons such decisions were made.

In addition, as employees return to work, employers must take great care to implement nondiscriminatory policies and procedures for bringing workers back to the workplace in order to avoid any discrimination-related claims. Guidance from both state and federal agencies provides that no determinations can be made about the risk of contracting or being infected with COVID-19 based on being a member of a protected class. The Illinois Department of Public Health, for example, specifically states employers are not to make risk determinations “based on race or country of origin.” Illinois Department of Public Health, Business and Organization Guidance, www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-z-list/coronavirus/business-guidance.In addition, women, especially those who are pregnant, could be especially vulnerable to discrimination as people come back to the workplace. Employers may exclude a pregnant woman from certain workplace responsibilities thinking they are protecting the employee, but this practice violates antidiscrimination laws. Likewise, employers cannot discriminate against employees who are of a certain age or who are perceived as having a disability because of COVID-19. These are just a few examples of how well-intentioned practices or policies could lead to unwanted and complicated litigation.

To avoid potential litigation, employers should engage in the interactive process, as laid out in the Americans with Disabilities Act of 1990 (ADA), Pub.L. No. 101-336, 104 Stat. 327, in order to find “reasonable accommodations” for employees who are fearful to return to work. In addition, the Equal Opportunity Commission (EEOC) guidance makes it clear that employers are not to enact blanket policies for certain “high-risk” individuals, while enacting separate policies for others considered “low risk.” There are a number of disabilities and preexisting conditions that require employers to provide reasonable accommodations in order to reduce the chances of workers contracting COVID-19. Employers who fail to engage in the interactive process in order to find reasonable accommodations may find themselves subject to litigation.

Privacy and Confidentiality of Medical Records

Another important consideration that goes hand-in-hand with creating return-to-work polices aligned with antidiscrimination is privacy and confidentiality surrounding medical information and details regarding leave from work. Employers must take special care when gathering medical information about their employees in order to make return to work decisions about those workers. Although employees are not generally required to disclose a positive COVID-19 test, the EEOC guidance on the issue states that employers may ask employees questions about their symptoms when they report feeling sick at work or call in sick. This information may then be used to determine if they have or might have COVID-19. This guidance suggests that employers may ask employees to inform them of any positive COVID-19 test results, which would allow employers to take measures to protect the health and safety of other workers in order to comply with the Occupational Safety and Health Act of 1970 (OSHA), Pub.L. No. 91-596, 84 Stat. 1590.

To avoid litigation surrounding these issues, employers should create return to work policies in line with this guidance. In addition, employers must maintain all information regarding employee illness related to COVID-19 (and all employee medical information) as confidential medical records for purposes of ADA compliance. Finally, employers are cautioned to ensure all medical records are kept confidential and separate from personnel records.

As employers continue to face touchy decisions regarding layoffs and returning to the workplace amid the COVID-19 pandemic, they must take great care to ensure that all policies and procedures are in line with the most up-to-date statutes and guidelines.

For more information about civil litigation, see FEDERAL CIVIL PRACTICE (IICLE®, 2020). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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