As shutdown orders begin to subside and states across the nation take steps toward reopening, employers should prepare for a potential spike in employment claims arising out of new legislation, the application of existing laws to novel workplace circumstances and a sudden downturn in the economy. Below is a summary of some of the claims that employers can expect to receive in the coming months.

Claims stemming from layoffs, furloughs and recalls to work

Employers may see claims brought by individuals who allege that they were not given proper notice of, and/or were discriminated against, in an employer’s selection of employees to terminate, furlough or recall following the onset of the COVID-19 pandemic.

Federal Worker Adjustment and Retraining Notification (WARN) and parallel state “mini-WARN” acts generally require covered employers to provide advance notice (usually 60 days) of a mass layoff or a significant reduction in hours.  As a result of the shutdown orders across the country, many non-essential businesses were abruptly forced to significantly slow or completely halt operations. Consequently, these businesses were forced to furlough or lay off their workforces with little or no notice. Employers that were unable to give requisite WARN notice (or gave no notice at all) may see an influx of claims seeking potential damages for back pay and fringe benefits for each day of violation, as well as for civil penalties. Unfortunately, the U.S. Department of Labor has yet to provide clear guidance as to whether the unforeseeable business circumstances or natural disaster exceptions will apply to businesses impacted by these shut-down orders.
Continue Reading Employers Beware: Post-pandemic litigation traps