In Episode 134 of The Workplace podcast, CalChamber employment law expert Matthew Roberts, CalChamber policy advocate Ashley Hoffman, and employment law attorney Colby Turner discuss COVID-19-related litigation and identify potential situations that can trigger lawsuits.
We are now 18 months into the COVID-19 pandemic, and we are seeing more and more court claims arise related to COVID-19 workplace practices, Roberts says in kicking off the podcast.
The pandemic forced approximately two-thirds of California workers to work from home, and employers’ biggest concerns throughout this time have been related to remote work arrangements, such as how to: prohibit off-the-clock work, ensure employees take meal and rest breaks, properly get notices out, track work being performed, and paying for employee home expenses like internet and utilities, Hoffman explains.
On top of this, employers have had to contend with tracking and figuring out all the different regulations and leave laws that have been passed at the local, state and federal levels, and deciding what laws take precedence over others.
Turner says that it’s no surprise that these are the biggest concerns employers are presenting to Hoffman because these same issues are what she is seeing in litigation.
Turner, who represents employers in labor and employment litigation at Seyfarth Shaw LLP, says she is seeing a disproportionate number of claims related to meal and rest breaks, remote work expenses and off-the-clock type of claims.
While meal and rest break claims have always been an issue in California, the situation has been exacerbated since the pandemic because remote workers often feel the need to work nontraditional hours in order to make up for interruptions during normal work hours.
In California, an employee is paid from the time work starts to the time work finishes and there is no flexibility to account for breaks to help a child with a Zoom class or being interrupted by a toddler who is at home, Turner explains. So what attorneys are seeing is claims related to employees trying to make up for these household interruptions by working an extra hour after they “log out” from work for the day.
Other common litigation includes creative claims for home business expenses, such as mortgage payments, homeowners association (HOA) fees, and air conditioning costs. There also are individual claims alleging workplace safety issues, such as discrimination related to medical/religious accommodation requests, workers not wearing masks at work, and employers failing to conduct COVID-19 symptom screenings.
Rest, Meal Breaks
California wage and hour laws are not designed for flexible work. If an employee is working remotely, they still need to record all of the time they spend working, Turner stresses. Even if an employee works for 15 minutes at 8 p.m., that time needs to be logged. Wage and hour penalties in California can add up substantially and the penalties easily dwarf the 15 minutes of labor. Employers can be on the hook for penalties under the Private Attorneys General Act (PAGA), wage statements, and liquidated damages, among others. And because remote work is done digitally, there may be a footprint proving that a company could have known that the employee was performing work off-hours.
While an employee can waive their rest breaks of their own accord, employers should not encourage workers to skip their rest breaks, Turner says. Moreover, taking 20-minute breaks here and there is not allowed for nonexempt employees, regardless of agreement.
Workplace Safety Claims
Turner says that workplace safety claims usually don’t arise out of nowhere. Usually, a claim happens after someone asked to work remotely first, was denied and forced to come into the office, and then the person filed a safety complaint. So, the first thing an employer should do is decide how they are going to respond to remote work requests, and really think about whether that employee needs to be at the worksite in order to perform their duties.
The complaints being filed allege that workers are not wearing their masks while at work; symptom screenings are not being performed; people are sitting side by side (not socially distancing); and coughing and sneezing at work, which is in violation of the screening requirements.
Some complaints, Turner says, concern more serious matters such as employees lying about their vaccination status and then walking around the workplace without wearing a mask. The employer is then perceived as not adequately checking the validity of employees’ vaccination status.
Employers are also concerned about COVID-19 vaccine mandates and having to verify the validity of medical and religious exemption requests. The current labor shortage further complicates the matter because some employers are struggling to hire staff and worry that mandating vaccination will lead to more turnover. Although offering COVID-19 testing is an alternative, it is very expensive and some employers cannot afford it, Hoffman points out.
COVID-19 employment rules are constantly changing, so it’s important to stay up-do-date. The CalChamber COVID-19 resource page provides key links to local, state and federal resources, and lists important news.
Employers should also continuously check their local county’s website and the California Division of Occupational Safety and Health (Cal/OSHA) website for updates, Hoffman says.
Tips to Minimize Risk
In closing the podcast, Turner shares ways that employers can minimize their risk of being involved in COVID-19-related litigation:
• Have a COVID-19 safety plan: If employees feel safe at work, there is less likelihood of employee complaints. Make sure that your safety plan addresses symptom screenings and vaccination verifications.
• Pay for reasonable home business expenses: For remote workers, assess if they need a home stipend or have incurred expenses from working from home.
• Conduct a monthly or quarterly audit to determine if remote employees are performing work off the clock, such as by checking the time stamp on emails or checking whether they log into any company software.
• Remind workers to record their work hours and submit expenses.