Photo by Vladimir Fedotov on Unsplash
The COVID-19 pandemic has upended life as we know it. As we surely all know from living through this crazy year, the novel coronavirus has impacted almost every norm of daily life that existed pre-COVID-19, both on an individual-level and a national-level. People no longer interact with one another in the same ways, schools have had to adopt new ways to instruct students, companies have had to develop completely new business models, workers have been laid off, travelling has been restricted, and on and on and on.
Everything has changed thanks to COVID-19.
And unfortunately, some employers out there have taken advantage of the chaos came with this pandemic. As unbelievable as it may seem, there are employers here in New York who have actually decided to use the real consequences of COVID-19 as a pretext for unlawful employment practices, such as discrimination, retaliation, and unfair labor charges. Below, we have detailed a few of the most common ways that we have seen employers try to blame their bad behavior on “the effects of COVID-19.” If you have experienced anything like one of the following situations at your place of employment, we recommend you contact an experienced employment attorney as soon as possible.
Discrimination
Pandemic-related discrimination claims tend to look and sound like normal workplace dismissals, but beneath the surface, the employer’s reasoning for their action is bound up in a COVID-19 pretext. Recent examples include:
- A race discrimination claim where a receptionist claims she was discriminated against and harassed for her mild Spanish accent, and then later was pretextually “laid off” for possible exposure to COVID-19 after visiting a school.
- An age discrimination claim where a 62-year old plaintiff was “first in line to be fired” as part of COVID-19-related layoffs, not truly due to his work ethic or job title, but because of his age.
- A class action lawsuit alleging that a company used COVID-19 as a pretext to specifically terminate a large majority of its minority employees.
Retaliation
The most blatant form of COVID-19-based unlawful retaliation is evident when an employer fires an employee immediately after the employee informs the employer that she has tested positive for coronavirus. This is clear unlawful retaliation, in direct violation of the Americans with Disabilities act (“ADA”), the Family and Medical Leave act (“FMLA”), as well as the recently enacted Families First Coronavirus Response Act (“FFCRA”). Under all of these laws, your employer cannot take an adverse action against you due to a medical condition that renders you unable to work.
Moreover though, there is an even more insidious form a COVID-19-related retaliation that has begun trending in New York: retaliation for speaking out about safety concerns in the workplace. This form of retaliation is all-too common because it is often used by employers in less-obvious ways.
For example, an employer may be exposed to liability under employment laws here in New York if the employer begins treating an employee differently, or scheduling them less often, after that employee complained about unsanitary conditions on the work site. Although these actions by the employer may not be as detrimental as being fired altogether, these acts are still unlawful retaliation and are punishable by law.
Other Unfair Labor Practices
Beyond using COVID-19 to discriminate or retaliate against employees, some employers have also begun using COVID-19 as an excuse to violate numerous labor laws. Examples of these kinds of situations include:
- An employer who threatened to keep workers on a COVID-19 “reduced schedule” even after the pandemic ends if the workers did not perform better work.
- An employer who tells his employees that he cannot pay them for a couple weeks due to COVID-19-related financial issues, but still requiring the employees to show up to work.
- An employer not properly compensating employees with the “hazard pay” they were entitled to under the FFCRA.
This list is nowhere close to exhaustive because employers have been and continue to be very creative in disguising unlawful conduct during this pandemic.
Think your employer is using COVID-19 as a pretext?
Call Shalom Law, PLLC today.
If you think your employer has committed one or more of the aforementioned violations and has tried to hide it by using COVID-19 as the excuse, you need to speak to an experienced Employment Law Attorney. These situations are tricky, and you are going to need an attorney on your side who knows how to see past your employer’s excuses to make sure your rights are protected. Call us today for a free consultation: (718) 917-9474.
This memorandum relates to general information only and does not constitute legal advice. Facts and circumstances vary. We make no undertaking to advise recipients of any legal changes or developments.
SHALOM LAW, PLLC.
105-13 Metropolitan Avenue
New York 11375
(718) 971-9474
www.shalomlawny.com
