For Labor and Employment Attorneys, COVID-19 Means Many Questions and No Easy Answers

For Labor and Employment Attorneys, COVID-19 Means Many Questions and No Easy Answers

5.28.2020

By Paula L. Green

As stay-at-home rules meant to slow the spread of the coronavirus are lifted and employers reopen shuttered workplaces, labor and employment attorneys are guiding clients through a maze of unknowns, and these expert attorneys are troubled by the boundless potential for lawsuits filed by employees anxious about their health and bank accounts.

“The information is detailed and changing,” said Douglas T. Schwarz, a partner at Morgan, Lewis & Bockius LLP. “The number one concern is the health of employees. Paying attention to the safety procedures is vital.”

Restaurants, retail stores, entertainment venues and other businesses where employees interact directly with customers will encounter more elaborate safeguarding measures, and perhaps more lawsuits. Larger companies with more money and space may be better able to accommodate returning employees and use more sophisticated screening techniques. Yet every business is moving warily.

“No workplace will escape,” said Schwarz, adding that the possibility of federal legislation limiting employers’ liability would not remove the prospect of state lawsuits.

“The issue is how do you maintain safety in the workplace in an era of a highly transmissible virus,” said Christopher A. D’Angelo, a corporate attorney and incoming chair of the association’s Labor and Employment Law Section. “Plexiglass is coming up a lot.”

Like many attorneys, D’Angelo expects an “explosion of litigation.” Claims could arise, for example, around contractual relationships and pay requirements, including employee demands for hazardous pay. The use of force majeure, which permits exclusions for liability due to events deemed an act of God, will be challenged, he said. Colleges that cancelled classes will be facing claims as the parents of students now learning remotely seek reimbursement for room and board fees and the more narrow scope of teaching.

Timothy S. Taylor, an arbitrator and mediator working with Scheinman Arbitration and Mediation Services, sees the volatile legal landscape emerging during the pandemic as an opportunity for greater use of arbitration and other forms of alternative dispute resolutions. Claims will only increase as employers begin to open their doors and factory floors and courts unwind the backlog of cases stacking up since March.

“What we’re seeing now is just the tip of the iceberg. It is difficult to predict what will happen as everything is very unsettled right now,” said Taylor. “Smart lawyers will figure out ways to represent their clients with novel grievances and lawsuits.”

Public sector workplaces hold sizable challenges for the attorneys guiding managers and employees of school districts and governmental bodies through the contractual obligations of union contracts. Union attorneys will also find themselves working with the claims of police, fire and other emergency service personnel exposed to the coronavirus.

For example, claims may surface from municipal government workers, who traditionally have reported to the office and find they must stay home with children no longer in school. Others, such as security guards and custodians who have worked overtime keeping properties safe and clean, may file claims for overtime or hazardous pay.

“It’s a surreal time. How do we keep employees safe and get back to work on some level?” said Sharon N. Berlin, chair of the association’s Local and State Government Law Section and a partner at Lamb & Barnosky. “We’re in uncharted territory.”

Many union contracts include arbitration clauses to help employees resolve workplace disputes. While courts are using virtual venues to handle some cases, attorneys are wary of the value of video conferences to settle sensitive cases.

“Video conferences can’t replicate face-to-face interactions,” said Seth H. Greenberg, who represents unions as a partner at Greenberg Burzichelli Greenberg. “They miss the richness of meaningful, personal meetings.”

Using video in the arbitration process, in which attorneys typically use break-out rooms for each side to caucus or talk privately with their clients, can be fraught with its own set of hazards for attorneys. While video is technically viable, attorneys worry about possible privacy violations if mute buttons are mistakenly unset or other technical issues crop up.

“We’ve been trying dry runs . . . working with Zoom,” says Marty Glennon, a founding partner of Archer, Byington, Glennon & Levine, LLP. “It takes a lot of navigating. It could open a whole host of malpractice issues if something goes wrong.”

Attorneys also are uneasy about setting uncomfortable precedents as cases are handled via video conferencing. Yet some of the legal practices evolving during the pandemic, such as a virtual court for a procedural issue, may make sense to maintain. “Sometimes I drive an hour for a two-minute hearing before a judge,” said Alyson Mathews, former chair of the association’s Labor and Employment Law Section. Ms. Mathews, a partner at Lamb & Barnosky, noted that greater use of video conferencing means law firms must adjust for the lost revenue.

Turning to alternative dispute resolutions can offer everyone – employers, employees and attorneys – an effective way to untangle the certain flood of claims and counterclaims that will emerge from the pandemic.

“This may be the time to try something new – a more holistic approach – rather than a straight legal approach to resolving conflict,” said Nance L. Schick, an attorney whose New York City law studio tries to keep her clients out of the courtroom.

Communication is always key in helping employers avert disputes and minimize the risk of lawsuits, Schick says. Now in the midst of the pandemic, it is critical.

“A culture of communication is essential,” Schick said. “We need new roadmaps to settle employer-employee disputes.”

Paula Green is a freelance writer.