Workplace litigation tied to the COVID-19 virus is increasing sharply, according to a report from
Fisher Phillips, which highlights the difficulties employers and their attorneys face in navigating new workplace laws and a crush of litigation under existing rules.
The firm's case tracker shows new case filings have increased each month since January, when the sole COVID-19 lawsuit was a traditional labor matter in Texas. Its dataset includes lawsuits between workers and businesses, whether that means employers and employees or companies and independent contractors.
The numbers have been rising for months, from 60 cases filed in April to 122 in June, the report says. Proposed class actions haven't seen the same increase, at 11 in April, 15 in May and 14 in June, it says. California and Florida are the busiest states for both types of cases, it says.
Several cases tack COVID-19 twists onto familiar types of disputes, the report says, identifying a case involving a pregnant worker who alleges she was furloughed and replaced by someone who wasn't pregnant. Another was filed by someone who said he was sent home from work and fired after displaying flulike symptoms, although he tested negative for COVID-19, it says.
Other cases present uniquely coronavirus claims, including requests for leave under the new Families First Coronavirus Response Act, which requires employers to provide paid leave if someone contracts COVID-19 or if child care is unavailable, it says.
The two most common types of cases involving individual plaintiffs are employment discrimination and issues addressing working from home or leave, the report says. As for proposed class actions, the most frequent types of cases allege employers haven't taken adequate safety precautions or shorted employees on pay because they worked unrecorded hours. In one sense, the numbers show a situation that should be familiar to employment law practitioners.
These types of workplace litigation aren't exactly new, but "these are old issues with new twists," said Melissa Camire, a Fisher Phillips partner who represents employers. "One thing that makes the litigation risk particularly acute is you have so many employees who are affected by the pandemic."
The unprecedented number of people facing job loss and other difficulties means there is immense potential for litigation, she said. And employees may consult an attorney for one issue and learn they can file a lawsuit they hadn't considered.
"This data is a stark reminder for employers that typical best practices cannot be ignored simply because we are operating in unprecedented times," Camire said. "You need to continue to train your managers so they have a solid understanding of their responsibilities and employee rights."
The situation is even more challenging with so many people trying to take advantage of new laws all at once, Camire said. Ordinarily, it takes years after a law is passed and to develop regulations and court rulings that apply it.
That isn't how coronavirus litigation is playing out. The FFCRA was introduced in Congress in March, and was signed into law by President Donald Trump and had
U.S. Department of Labor regulations published in less than a month.
"It's made all the more tricky given that it's new," she said. "We don't have case law precedent to analyze how courts would do something. We don't have black-letter law to draw on."
In light of the new wave of litigation, data analytics are important to help employers and attorneys understand how they should stay on top of things.
"It's not just enough to know that there's an avalanche of employment litigation. You have to know what the claims are," Camire said.
Fisher Phillips has used data analytics for years, but this is the first time it has made its information available to the public, Evan Shenkman, the firm's senior director of knowledge management, told Law360.
"Analytics is a big part of case assessments and how we price cases," he said. "It's gone from something that is nice to have to something that is a must have."
Fisher Phillips uses a combination of public and commercial databases to identify and track new employment cases in federal and state courts, Shenkman said. The firm has a team of people who help make sure that its automated tools are capturing information that it wants, and not, for example, a case that is unrelated to COVID-19 that has a hearing delayed because of the virus, he said.
The dataset aims to be comprehensive but is likely not exhaustive, the report said.
--Editing by Brian Baresch.
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