Preparing for COVID-19 Whistleblower and Retaliation Claims
It is a virtual certainty that lawsuits from employees will increase, and likely with emphasis on whistleblower and retaliation claims as states reopen and more employees return to work. Employers need to think ahead and be ready for this wave of litigation.
There are many reasons why the COVID-19 pandemic could lead to these claims. First, the world is dealing with a new and highly contagious virus and we are in uncharted waters. No one knows what measures must be taken to keep workers safe, or whether there will be other explosions of the virus in workplaces.
Second, the economy is bad and jobs are scarce. Employees who feel that they are at risk of termination or layoff will try to protect their jobs or shield themselves. Some will resort to whistleblowing about health and safety or other public policy issues, while others will might allege individual retaliation claims against their employer. Employers in highly regulated industries, like healthcare, energy, and consumer goods see whistleblowing complaints regularly, but as we move forward, these types of complaints will likely increase and extend beyond these industries.
And finally, the plaintiffs’ bar is hungry. Courts have been closed and cases stalled—they sense blood in the water and will strike.
So, what’s an employer to do? Sit back and wait for the claims?
Absolutely not. Employers can be proactive and take action now to minimize the risks of these claims, and prepare robust responses for when claims do happen. The steps that employers take now in response to employee complaints regarding health and safety concerns, compliance with state mandates, and state and federal laws will make an appreciable difference when it comes to preventing and defending against future litigation.
In order to prepare, employers must consider both federal and state claims that employees may raise, and make sure that their internal compliance, Legal and Human Resource staff are ready to respond. A prompt and thorough response to an internal complaint will go a long way towards averting potential liability for failing to appropriately respond to employee complaints in relation to the COVID-19 crisis.
As examples, we looked at a few possible federal claims, as well as claims under New York and New Jersey’s respective laws:
Occupational Safety and Health Act (OSHA)
As employees return to work, especially if they feel ‘pressured’ to return before they feel totally safe, employers are likely to see both internal and external complaints about perceived safety issues. OSHA provides that employers have a “general duty,” to provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to [the employer’s] employees.” 29 U.S.C. § 654(a)(1). Section 11(c) of OSHA prohibits employers from retaliating against employees for exercising their rights under the Act, including raising a health or safety complaint with OSHA. 29 U.S.C. § 660(c).
Although there is no private right of action under Section 11(c), the Secretary of Labor can sue an employer in federal court on the employee’s behalf for relief including: back pay, compensatory damages, punitive damages. Also, an OSHA or safety complaint could be used as a basis for a whistleblower claim under state law, or under a related regulatory scheme.
National Labor Relations Act (NLRA)
From warehouse operations to healthcare institutions, employees across the nation are staging walk-outs and “sick-outs,” in response to alleged COVID-19 exposure concerns. Employees are protesting for better safety protections, working conditions, and pay during the coronavirus pandemic.
Employers need to be aware that even if you are NOT unionized, any such group or possibly even individual protests may constitute protected activity under sections 8(a)(1) and 8(a)(3) of the NLRA. Thus, any employees who stage walk-outs or engage in other protests over working conditions are protected from retaliation. 29 U.S.C. § 158(a).
Further, any effort to discipline an employee because they participate in such an activity, or communication, may violate the NLRA and become fodder for future claims.
Americans with Disabilities Act (ADA)
While the EEOC has still not taken a position as to whether COVID-19 constitutes a “disability” under the ADA, there are many individuals who because of an underlying condition may (for the foreseeable future) be designated as high risk for exposure. The ADA provides, “no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by” the ADA. 42 U.S.C. § 12203(a).
This has many implications for the future. High risk individuals – who may be working remotely now – may upon return-to-work, request to work from home as an accommodation. Employers are, of course, not required to handout permanent teleworking assignments like candy, but in reviewing COVID-19 related requests, employers must still engage in the interactive process and, more importantly, continue to document that process. Failure to do so may subject employers to failure to accommodate claims, and, where the inability to grant an accommodation results in an adverse outcome for the employee, retaliation claims as well.
Employers should consult counsel and watch for continuing EEOC guidance in this area.
Families First Coronavirus Response Act (FFCRA)
On March 18, 2020, the FFCRA was enacted to assist certain employers to provide employees with paid sick leave, and expanded family and medical leave regarding reasons related to COVID-19. Employers are prohibited from discharging, disciplining, or otherwise discriminating or retaliating in any manner against an employee who takes paid sick leave or expanded FMLA leave under the FFCRA, files a complaint or institutes a proceeding under or related to the FFCRA, or testifies in such a proceeding.
Fair Labor Standards Act (FLSA)
Whether it’s the essential employees on the frontlines working extended hours and shifts, or the employees now working from home with reduced hours and/or reduced pay—employers are at risk of FLSA complaints and claims. The FLSA’s anti-retaliation provision states that it is unlawful to “discharge, or in any other manner, discriminate against any employee because such employee has filed any complaint, or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified, or is about to testify in any such proceeding, or has served, or is about to serve, on an industry committee.” 29 U.S.C. § 215(a).
Employers also need to look at state and local laws where they have operations as the basis for possible whistleblower claims. As examples, we review here New York and New Jersey whistleblower laws:
NY has two whistleblower statutes, NY Labor Law Section 740, which applies to all employees, and NY Labor Law Section 741, which protects healthcare employees. Employee claims may arise under either statute, which differ from each other as follows:
- NY Labor Law Section 740, protects employees from retaliation for reporting a violation of the law that creates and presents a substantial, and specific danger to the public health or safety. Note that, unlike some state statutes (such as New Jersey’s CEPA statute described below), an employee’s good-faith belief that his or her employer engaged in a violation of the law is not sufficient to sustain a claim under Section 740. Rather, to recover, an employee must prove that an actual violation occurred, not that they had a reasonable belief that such a violation occurred. In addition, the violation alleged must be of the kind that creates a substantial and specific danger to the public health or safety, i.e., not just the individual employee.
- NY Labor Law Section 741 protects health care employees from retaliatory actions where the employee threatens to disclose, or discloses to a supervisor, or public body, any activity, policy or practice which the employee in good faith reasonably believes constitutes improper quality of patient care, or objects to or refuses to participate in any such activity, policy or practice. Dissimilar to New York Labor Law Section 740, an employee must only show a good-faith belief that the employer engaged in a violation of the law.
NJ employees are entitled to statutory protections under the Conscientious Employee Protection Act (“CEPA”) and may also raise a common law “Pierce” claim. The salient differences are summarized below:
- CEPA, one of the broadest whistleblowing statutes in the nation, prohibits employers from retaliating against an employee, among other things, if the employee does any of the following:(1) Discloses, or threatens to disclose, to a supervisor or to a public body an activity, policy or practice of the employer or another employer, with whom there is a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation issued under the law, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care; (2) Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation issued under the law by the employer or another employer, with whom there is a business relationship, or, in the case of an employee who is a licensed or certified health care professional, provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into quality of patient care; or (3) Objects to, or refuses to participate in, any activity, policy or practice which the employee reasonably believes: (a) is in violation of a law, or a rule or regulation issued under the law or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care; (b) is fraudulent or criminal; or (c) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
- Employees in NJ terminated in violation of public policy may also raise a common law “Pierce” claim. Pierce claims have a 2-year statute of limitation, as opposed to CEPA claims which have a 1-year statute of limitation. Pierce claims also apply only to terminations, whereas CEPA claims apply to any retaliatory act.
Safety: When it comes to workplace safety, follow the CDC, OSHA, and state specific guidance regarding maintaining a safe and healthy workplace. Also, be sure to document all safety policies and measures you have taken, both in preparing the workplace, and accommodating specific employee concerns
Discrimination/ Accommodation: Update key policies on subject like telework and disability accommodation, and stay current with EEOC and state guidance. In this difficult time, review those policies with counsel. See EEOC's latest guidance here.
Think about an accommodation not just for “high-risk” employees or those with underlying conditions, but for others who are vocal about workplace safety and other issues attendant to the crisis.
Where possible, allow employees to work remotely, even for the next few months, until things settle down and we begin to get closer to normal in the workplace.
If you cannot allow an accommodation, be sure to document the reasons why.
Whistleblower Complaints: In general, always document employee complaints. When it comes to whistleblowers, this is especially importantly, particularly when it comes to any alleged federal or state statutory violations.
Make sure you are proactive about fixing whatever problem they perceive in their work environment.
Don’t just fix the problem tell them what you have done to correct it. Respond in writing or via email whenever an employee complains.
Finally, employers cannot forestall every potential lawsuit, however, by incorporating best practices, they can proactively reduce potential whistleblower claims. Here are our recommended best practices:
- Never terminate an employee for complaining; if you are going to terminate someone who has a history of complaints be sure you have a really good reason and have talked with counsel.
- Review, publicize, and enforce the reporting procedure for employees who express concerns regarding the COVID-19 crisis, including health and safety, compliance with state executive orders, or state and federal laws.
- Be more flexible in this environment about allowing telework; but be clear that it is a privilege and employees who telework must meet performance standards.
- Dust off and reissue key policies such as anti-retaliation, whistleblowing, and reporting policies to employees.
- Remind supervisors of the need to take seriously any concern raised by an employee particularly as it relates to COVID-19.
- Train or retrain supervisors and managers on reporting mechanisms and policies. Emphasize the importance of escalating employee complaints to appropriate departments and documenting the employee’s concern as well as the process and resolutions.
As always, employers must administer their policies fairly and clearly document all employee complaints to minimize risk and mitigate future litigation.