As employers throughout California are tackling unprecedented challenges brought about by the novel coronavirus (COVID-19) pandemic, it’s inevitable that mistakes will be made. However, employers would do well not to exacerbate their financial woes by erring when it comes to employee pay, sick leave and wrongful termination.
Outlined here are the top legal missteps our Orange County employment lawyers see companies making in the coming weeks and months.
Retaliation, Discrimination, Wrongful Termination
Many employers are having to make tough decisions about how to conserve resources so they can stay afloat during California’s lock down. In some cases, that means they are looking at targeted reductions in their staff.
This is not without risk.
Some of these employers may be in what we refer to as a protected class. Firing them may open the door to a retaliation claim under the state’s occupational safety and health or discrimination laws.
For example, if an employee was fired for refusing to come to work prior to the statewide stay-at-home order due to concern over contracting COVID-19 or the adequacy of the employer’s health and safety policies, they may be protected under OSHA laws. That means if they could have a claim for retaliation and wrongful termination.
Consider another scenario where older workers are laid off disproportionately. This saves the company more money per-person because older workers tend to be paid much more. But that is age discrimination, and it’s illegal.
That doesn’t mean everyone who was laid off or let go was “wrongfully terminated” or discriminated against, but it is something to consider. Motive will be an important consideration in these matters.
Paid Sick Leave Disputes
If an employer tries to prevent workers from using their accrued paid sick leave or takes adverse employment action against them for using it, they may be in violation of California’s wage and hour laws.
State statute gives employees the right to use their paid sick leave to recover from sickness, prevent themselves from getting sick or taking care of a family member who is sick.
On April 1st, the U.S. Department of Labor announced new elements of the Families First Coronavirus Response Act that requires certain employers to give workers up to 80 hours of paid sick leave for certain specified COVID-19-related reasons. Another aspect, the Emergency Family Medical Leave Expansion Act, mandates certain employers give their workers up to 10 weeks paid and 2 wees unpaid if the worker must care for a child whose school or daycare is closed due to COVID-19.
Employers who fire workers who are using FFCRA or state relief programs are risking litigation. It would be illegal to fire these workers because they are using those programs.
Not Reimbursing for Reasonable Employee Expenses
Most workers who are able to do their jobs from home are doing so. The mistake some employers are making, however, is compelling their employees to pay for the things they need to do their jobs. These can include laptops or cell phone or internet or additional electricity. Employers should determine what is necessary for these workers to do their jobs, and then cover associated costs.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949-375-4734.
FAQs on Laws Enforced by the California Labor Commissioner’s Office, California Department of Industrial Relations