it is a virtual certainty that the some employees will pursue COVID-related wage and hour actions against employers. For example the wage and hour claims could include (1) claims alleging that non-exempt employees working remotely were not paid for all hours worked (due to relaxed or different timekeeping systems used for remote work and/or due to performing some work while on an unpaid furlough),
(2) claims alleging that employees were not reimbursed for all necessary business expenses associated with remote work, (3) claims that employees were not reimbursed for supplying personal protective equipment (e.g. masks and/or gloves) used in the workplace; (4) claims that employees who were temporarily furloughed and then laid off were not timely paid their final wages; and (4) claims that exempt employees had pay deductions that violated the salary rule requiring that exempt employees generally must be paid their full salary for any workweek in which they perform work.
Retaliation Claims
Employers have been faced with numerous issues of essential workers refusing to come to work due to a fear of contracting COVID-19. Fear alone generally is not a qualifying reason to refuse to work or to take various forms of recently enacted paid leave. In some instances, employees have chosen not to work because they have realized they can earn more money collecting unemployment with the $600 CARES weekly supplement than they would earn if they reported to work.
Where employees have been terminated for refusing to report to work, it is very likely that there will be lawsuits alleging these employees were unlawfully retaliated against for engaging in the protected activity of refusing to work in unsafe work conditions. If COVID-19 and the employee’s specific work setting are such that an employee could said to have had a reasonable belief that reporting to work could cause serious injury or death, the employee’s refusal to work could be deemed protected activity.
Contact an Employment attorney BEFORE taking an adverse action.
