Member Article

Key Points

• As the State begins to open back up, COVID-19 employment related litigation also begins. Several trends have emerged.
• On an individual and class-wide basis, Plaintiffs cite disability discrimination, emotional distress, retaliation, reimbursement, public nuisance and WARN Act claims, among others.
• In order to help mitigate future litigation, employers should review with their counsel the underlying facts of these recently filed COVID-19 cases to see if they should consider changing protocols or policies.

After battling the unknown territories of COVID-19 related problems in their work places, employers are now battling the aftermath in the form of claims for their alleged missteps. We see several trends taking shape in the type of claims filed.

First, employees are filing negligence-like claims alleging their employers did not provide adequate protective gear or did not taken necessary steps to protect employees. See Arnold v. Corecivic of Tennessee LLC and Smith v. Corecivic of Tennessee LLC (US District Court, Southern District; negligent supervision, wrongful constructive termination, intentional infliction of emotional distress) and Noh v. Fraud Fighters Inc. (Los Angeles Superior Court; wrongful termination, Lab Code Sect 6301 retaliation claims for raising health concerns). In Noh, the plaintiff alleges that she was concerned she might have been infected and offered to work remotely for fear of possibly spreading the virus. The company terminated her instead.

The second group of cases allege disability wrongful termination, retaliation, and/or failure to accommodate claims alleging that employers used COVID-19 related reasons to mask illegal terminations separate from the pandemic. In Lewin v. San Francisco Travel Association, et al (San Francisco Superior Court) plaintiff, suing both the entity and individual supervisors alleges that they denied her FMLA/CFRA leave to take care of her mother who had lost her caregiver due to COVID-19. The company denied the leave and thereafter "laid her off"—a pretext for discrimination. See also, Babson-Koenig v. GPS Services Inc., GAP Inc. and Old Navy Services Inc., (San Francisco Superior Court; retaliation for prior complaints) and Manning v. The Los Angeles LGBT Center (Los Angeles Superior Court; HIV failure to accommodate claim).

In Klein v. Paradigm Talent Agency, LLC (Los Angeles Superior Court), the plaintiff, a 23-year employee, goes after the jugular claiming that the company used the "national emergency" to effectuate long term job cuts, referring the layoffs to "March Massacre." She also claims that she is owed $2 million as she had an oral employment contract through December 2021 that the company breached when it terminated her. She seeks an accounting for commissions owed and damages for a whistleblower retaliation claim.

In one case alleging disability harassment based on perceived COVID-19 positivity and other claims, Kristy v. Costco (Santa Clara Superior Court; defamation, invasion of privacy, wrongful termination, negligence and intentional infliction of emotional distress), the plaintiff alleges that after quarantining for several days, he returned to work where co-workers and a manager harassed him because they suspected he was sick with COVID-19. The plaintiff also alleges an associational disability claim because, after his wife returned from South Carolina with a cough, he chose to self-quarantine out of caution. The plaintiff alleges he was publicly humiliated (employees called Plaintiff “Coronavirus boy”) and that rumors spread in the workplace that Plaintiff was infected with coronavirus.

In another case, Siers v. Velodyne Lidar, Inc. (US District Court, Northern District), the Plaintiff alleges violations of the federal and state WARN Acts. Siers seeks unpaid wages and other benefits for 60 days on behalf of those fired without proper notice.

Lastly, plaintiffs have filed paid sick leave claims against "gig economy" entities. In both Verhines v. Uber Technologies, Inc. and Rogers v. Lyft, Inc. CGC-20-583685 (San Francisco Superior Court), the plaintiffs same counsel alleges that the companies misclassified the plaintiffs as contractors in violation of California Labor Code § 2750. Due to this misclassification, they were not provided paid sick days.

In both Corbin v. DoorDash and McGhee v. Postmates Inc. (San Francisco Superior Court), the same counsel filed copy-cat complaints against these "gig economy" entities raising Labor Code 2802 claims alleging that the food delivery companies did not provide sanitizing equipment and personal protective gear so they purchased it out of pocket. They also allege the companies did not protect the drivers delivering food. McGhee alleges that, after delivering food to an emergency room, she and her daughter had gastrointestinal issues, fever, cough, and sore throat. However, they were not tested for COVID-19 because they did not satisfy the then-in-place qualifications for testing. Both Corbin and McGhee raise a public nuisance claim under Civil Code Sections 3479 and 3480, Corbin claiming that DoorDash's failure to comply with health and standards "is causing, or is reasonably certain to cause, community spread of the disease."

Note that of the 13 cases filed, no plaintiffs claim that they became infected as a result of the employers' actions. McGee and Noh allege that they may have been infected.

These nascent cases are good indicators for employers. Check current practices—if need be—amend them. Of course, review with counsel when creating policies and practices in this "in-flux" area. We are monitoring these cases and will provide any relevant updates.

Thank you to Hanson Bridgett law clerk Breana Burgos who assisted with this article.