Employers – brace yourselves. COVID-19 disrupted all of our lives, but it also changed the rules of the workplace. New rules, vague guidance, lack of judicial precedent, and employees out of work or making less money. This is the perfect recipe for costly litigation. Our first post in this series focused on employees, while our second post focused on contracts. In Part 3 of this series, we discuss some of the likely ways employers will find themselves being dragged into court in the near future – the COVID-19 related lawsuits.
Wage and Hour: A Field of Legal Landmines
Employers who don’t adequately track time worked by hourly/non-exempt employees are asking for trouble. Especially if those employees are working remotely! Non-exempt workers must be paid for any time worked (and overtime for any time worked in excess of 40 hours per week). Some employees may work more hours than authorized in order to rack up their wages. If you don’t track those hours, you won’t know about it until it’s too late and you have to pay up. Other employees may not actually work at all – but will still tell you that they did so they get paid. The point is this - if you don’t know how many hours your employees are working, you don’t know how much to pay them. Welcome to a wage and hour nightmare!
Think you’re safe because all your employees are exempt from overtime? Think again. In this “new normal” with high employee turnover, many employees are being asked to pick up the slack and undertake new tasks and responsibilities. For example, if an office manager (or someone typically exempt from overtime) is now performing clerical or administrative work, they might lose their exempt status and become entitled to overtime. Similarly, if you reduced wages, you might trigger the non-exempt status. Most exempt positions require that the employee be paid at least a specific weekly salary. If you’ve reduced pay, and the reduction pushes that employee below that threshold, then you may have inadvertently changed that exempt employee into an overtime eligible non-exempt employee.
Wage and hour suits are a nightmare for business owners. COVID-19 merely brings the issues to the forefront. Failure to pay proper wages can result in an enormous legal bill – both in legal fees and damages. Taking some protective measures now can save you enormously down the road.
Safety, Safety, and More Safety!
The COVID-19 pandemic has taught us that you’re being judged on what measures you’re taking (or not taking) to keep your employees, customers, and on-site vendors safe. Having adequate protective measures in place will save you in the long run (think: in sick employees, lost customers, and legal fees to defend lawsuits).
OSHA requires that employers keep the workplace “free from recognized hazards that are likely to cause death or serious physical harm.” What that means today is very different from two years ago. Do you have a written health and safety policy? Who is in charge of overseeing workplace safety and health issues? Are you communicating these measures to your employees? Do you have clear, non-discriminatory plans in place to screen employees and customers? Do you know what steps to take in the event an employee gets sick at work?
Employers should implement comprehensive safety and health protocols for the workplace – because it’s the right thing to do and because you’ll pay for it if you don’t. Be proactive and communicate everything you’re doing to your employees and customers so they know that you’re taking steps to keep them safe. You don’t want to appear unsympathetic or, even worse, reckless.
Get Ready to Accommodate
Perhaps some of your employees don’t want to return to the office. Your first step is to speak with them and find out why. Are they worried about getting sick? Did they just really, really enjoy working remotely for two years? Are they concerned because they have – or live with someone who has – an underlying medical condition that makes them more vulnerable to an illness like COVID-19? Your obligations, and their rights, depends on the response.
Employers with 15 or more employees must comply with the Americans with Disabilities Act (ADA). If you have less than 15 employees, it probably makes sense to act like the ADA still applies. In certain jurisdiction, COVID-19 specific leave laws provide additional rights to employees. Under the ADA and various state laws, employees can request a “reasonable accommodation” that allows them to do their job. Employers must engage in an interactive process to determine what that reasonable accommodation is and must provide that accommodation unless it poses an “undue hardship”. What’s a reasonable accommodation? That depends on the circumstances – but allowing an employee to work remotely may be a start. Forcing an employee who has an underlying medical condition to return to work might be asking for a lawsuit.
Engage with your employees. Ask them about their concerns. Listen to what they say. Try to accommodate them when necessary. And just as important – document everything. You’ll want this as evidence in the event you’re hit with a lawsuit.
Employers already know this (hopefully). But there’s no doubt that employees have become – and will continue to be – more vocal about conditions in the workplace. Whether it’s a lack of adequate safety measures, unfair hiring policies, inconsistent pay reductions, refusal of medical leave, expect to hear complaints from your employees. When an employee raises concerns about unlawful conduct – or questionable workplace safety and health concerns – various federal and state laws protect that employee from retaliation. Don’t punish employees for complaining.
Implement – and communicate to your employees – clear, understandable reporting procedures that enable employees to raise their concerns without fear of retaliation. Make it clear that their concerns will be heard and addressed as needed. Put this policy in your employee handbook. It’s important to avoid even the appearance of retaliation against any employee who raises any such concerns. This means no adverse change in pay, schedule, title, or other key terms of employment.
These are just some of the issues that employers will have to deal with as we navigate a world post-pandemic (can we say that yet?). While it’s difficult to know the “right” way to do things, it’s certainly easier to avoid the “wrong” way of doing things.
There you have it, this concludes our series on why businesses (will) get sued, and what you can do about it.
As always, if you’ve got questions – you know we’ve got answers.
Damien + Brian
ABOUT WEINSTEIN + KLEIN P.C.
Established in 2019, New York City-based Weinstein + Klein is a boutique law firm focused on labor and employment law, litigation, and business matters. Weinstein + Klein works with businesses, individuals, and entrepreneurs to protect their legal interests. In addition to advising clients on employment matters and working with businesses to minimize their risk of litigation, Weinstein + Klein advises small businesses and start-ups on various business law matters. For more information about Weinstein + Klein, please visit www.weinsteinklein.com.