COVID-19 & THE EMPLOYMENT LITIGATION HORIZON: UPDATE #2—CORONAVIRUS RETALIATION & WHISTLEBLOWER CLAI
As Georgia and other states begin to “open,” and employers in those states take their first tentative steps toward recalling furloughed workers to previously shuttered workplaces, they face a constantly shifting legal landscape and a host of litigation risks. As a litigation boutique that represents employers, executives and workers, our purpose here is not to wade into the debate over the wisdom of such re-openings but, rather, to provide some (hopefully) helpful information to those weighing such difficult decisions—and those impacted by them. This is the second in a series of posts addressing such issues, which we will update consistently over the coming weeks. This second installment addresses coronavirus retaliation and whistleblower claims.
Coronavirus Retaliation and Whistleblower Claims. On April 23, 2020, the general counsel of a Dallas, Texas-based company filed a lawsuit alleging that the company fired her in retaliation for complying with local shelter-in-place orders. According to her complaint, her firing came immediately after she sent an internal email objecting to a directive that she report to the office, which she complained would violate the local shelter-in-place ordinance and potentially subject her to criminal prosecution.
Legal experts see a wave of similar lawsuits on the horizon, both in the form of retaliation and whistleblower claims. Though legally distinct, both retaliation and whistleblower claims, at bottom, seek to protect employees from employer retribution for exercising their legal rights. Practitioners already report an “increase in retaliation claims under state and federal law.” They also predict a coming “onslaught” of whistleblower claims, predicated on “allegations [of] company misconduct, both COVID-19-related and otherwise.” Two federal laws that will likely factor heavily in this coming wave of litigation are the recently-enacted Family First Coronavirus Response Act(“FFCRA”) and the long-ago enacted Occupational Safety and Health Act of 1970.
The FFCRA. As discussed in greater detail here, the FFCRA provides paid sick leave and paid “expanded family and medical leave” to workers impacted by the coronavirus. Of relevance to this discussion, the FFCRA prohibits employers from “firing, disciplining, or otherwise discriminating” against employees who (a) seek to take, or take, protected FFCRA leave; (b) file a proceeding under the FFCRA, or (c) intend to testify, or testify, in an FFCRA proceeding. An employer that violates the FFCRA’s anti-discrimination and retaliation provisions may be subject to penalties or enforcement actions. Additionally, the FFCRA permits an employee to pursue a private right of action against an with 50 or more workers.
Notably, however, the FFCRA includes a significant “safe harbor” for employers. The law does notprotect employees from legitimate employment actions, like layoffs, that would have been taken regardless of the employees’ exercise of their FFCRA rights. Thus, according to recently published guidance from the U.S. Department of Labor, “[t]his means your employer can lay you off for legitimate business reasons, such as the closure of your worksite” as long as it can “demonstrate that you would have been laid off even if you had not taken leave.”
The Occupational Safety and Health Act. As discussed in greater detail here, the Occupational Health and Safety Act of 1970 seeks to “ensure safe and healthful working conditions” for American workers “by setting and enforcing standards and by providing training, outreach, education and assistance.” The Act is enforced by the Occupational Safety and Health Administration (“OSHA”), which is a division of the U.S. Department of Labor.
As discussed here, OSHA enforces more than twenty (20) laws that protect whistleblowers from retaliation for reporting violations of various workplace safety and health rules, across a wide spectrum of industries. On April 8, 2020, OSHA issued a press release to “Remind[ ] Employers That They Cannot Retaliate Against Workers Reporting Unsafe Conditions During Coronavirus Pandemic.” The press release, available here, reiterated that “it is illegal to retaliate against workers because they report unsafe and unhealthful working conditions during the coronavirus pandemic,” such acts of retaliation including “terminations, demotions, denials of overtime or promotion, or reductions in pay or hours.” OSHA encouraged workers who believe they have been subjected to such unlawful retaliation to “contact OSHA immediately” or “file a whistleblower complaint online with OSHA (or 1-800-321-OSHA).”