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Fallout from pandemic job loss: Workplace lawsuits

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The pandemic has disrupted ties between many workers and their employers. A labor attorney says some companies are taking the opportunity to discard workers who are older, disabled or marginalized. Frederic J. Brown/AFP via Getty Images

A former Wayfair employee recently sued the giant retailer, claiming he was fired because he needed to care for his kids during the pandemic. A recent poll of lawyers at some of the world’s largest finance, insurance, tech and life-sciences firms shows they expect pandemic-related lawsuits like this one to skyrocket in 2021. 

“A lot of people are losing their jobs and feeling vulnerable, and plaintiffs’ lawyers are smart and creative,” said Janie Schulman, a lawyer with the San Francisco firm Morrison & Foerster, which did a survey of in-house counsels late last year on the legal and compliance challenges they see stemming from the pandemic.

Schulman said whenever there’s great upheaval — during a global pandemic, for example — it’s only natural that employees may look for someone to blame or some way to make money after a job loss caused by the economic downturn.

She estimates there’s been nearly 1,500 COVID-related legal cases, with many more lawsuits to come. They generally involve what’s known as workplace accommodations.

“The most cases that have come up have to do with people who claim entitlement to leaves of absence or sick leave or leave to care for others,” she said.

Schulman questions the legal merit of many of these cases. But Philip Gordon, a labor lawyer representing at least a dozen employees who were let go during the pandemic, said some employers are taking advantage of the situation. 

“Employers are taking this as an opportunity or a pretext to discriminate, to actually clear out their workforces of older people, minorities, people with disabilities, people with medical conditions,” Gordon said.

Both lawyers pointed out that the COVID-19 pandemic has been particularly difficult to navigate for workers and employers. But Gordon said some large employers have avoided taking a good, hard look at what their employees need.

“Many employers simply did not know how to deal — or never cared to look — at how to deal with employees who have medical issues,” he said. “Now suddenly, you have lots of employees who potentially have medical issues, and now suddenly employers actually have to look at that because their workforces are disrupted.”

Randy Albelda, a professor of economics at the University of Massachusetts, Boston, said history suggests there won’t be a rash of workplace lawsuits, especially not frivolous ones. But, she said, the pandemic has been unprecedented, so past behavior is not necessarily a guarantee of future actions.

“It is a strange time,” Albelda said, “a time in which workers are being treated very differently than they have in the past.”

Albelda said she believes the U.S. could have prevented many lawsuits had legislators created comprehensive laws mandating paid sick leave and parental leave.

Schulman and Gordon both said employee lawsuits are expensive and time-consuming. And they estimated that each workplace lawsuit can cost upward of $1 million.

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