August 03, 2020 Workplace Chatter & On In-House Counsel’s Desk

Terminations and Retaliation in a Time of COVID-19

Erin Ebeler Rolf and Laura J. DePetro

Now, as much as ever, employers need to be careful when terminating employees. However, as with seemingly everything else these days, the current pandemic poses unique concerns. Indeed, retaliation lawsuits against employers are on the rise with employees claiming they were terminated for complaining of unsafe working conditions during the COVID-19 pandemic. Generally speaking, retaliation can be boiled down to three elements: (1) an employee engaged in some legally protected activity; (2) the employer takes a materially adverse employment action against the employee; and (3) there is a causal connection between the two.

Examples of Situations that Could Create Disputes

Very few employers enter into terminations or layoffs with the intent of wrongfully retaliating against an employee.  So, what sorts of situations arise that could create problems?

Example 1:  Some employers may see this as a good opportunity to “clean house” while avoiding the confrontation that can come with a termination.  The thinking goes that the employee can simply be told that the “layoff” is because of COVID-19 or economic conditions and not poor performance or a bad attitude – it helps the employee save face, makes it easier for them to explain the termination to future employers, and avoids a tough conversation…everybody wins, right? 

Example 2:  Some employees are constantly raising safety concerns about the workplace.  The employer is doing the best it can!  Nobody can buy enough PPE at reasonable prices these days.  If the employees don’t want to be at the jobsite, then at the time of layoffs, it’s just easier to pick who should go home…right? 

Example 3:  An employee is asking to work from home in accordance with local or state stay-at-home orders or recommendations.  (Situations like these may also include a dispute over whether a worker or a company meets the definition of “essential” under the order or recommendation at issue.)  If the employee doesn’t think that their job is essential, then maybe the employer doesn’t need the worker.  The employee has admitted that a layoff is appropriate for their position…right?

Example 4:  The employee has (perhaps publicly) asked an employer to provide additional hand sanitizer, more cleaning supplies, and/or enhanced social distancing measures while claiming that the health and safety of all employees are being placed at risk by their employer.  The employee is making the employer look bad in public, and that’s bad for business!  He or she is stirring up trouble with other workers.  I can fire them for hurting morale and damaging the company’s relationship with customers…right?

Simply put: all of these situations can have far-reaching consequences for employers and need to be handled with care. 

What’s an employer to do?

With these examples in mind, some employers may worry that it is next to impossible to discipline or terminate an employee who has engaged in protected activity such as this but that is not the case.  The key is that employers should not take an adverse action against an employee because of the protected activity.  All employees should be held to a consistent set of performance and behavioral expectations with limited exceptions to that general rule that are based on the law or objective, non-discriminatory reasons. 

For example, there are likely legitimate reasons why employment situations are handled differently as between long-term employees with stellar records and newer employees who have quickly amassed long “rap sheets” of employment infractions.  In such situations, documentation is critical to demonstrate that the employee was fired for the misdeed at issue and not prior protected activity such as raising health and safety concerns.  Additionally, the employer’s reaction to the protected activity will be scrutinized. For example, did the employer listen to the employee’s concern, calmly consider the request, and then make a reasoned decision?  Or did the employer get frustrated, tell the employee that they should be grateful to have a job at all in this environment, and tell them to quit if they didn’t like their job? 

Consider also the first example identified in this article – the “layoff” for purported COVID-19 or economic reasons rather than performance concerns.  What happens when the employer seeks to quickly refill that position with a new employee?  A recently terminated employee may question whether he or she was truly laid off due to the economy when someone else is hired as a replacement.  The former employee may argue that the employer’s stated reason was pretext and that the true reason relates to discrimination due to a protected characteristic or was in retaliation because the employee had asked for leave under the Families First Coronavirus Relief Act (“FFCRA”).  In short, attempts to avoid a difficult conversation regarding the employee’s performance may earn the employer an extended conversation about the matter in litigation proceedings that can take 12-18 months.

Key Takeaways

  • Good faith complaints by employees about perceived legal violations or health and safety issues should be dealt with in good faith by employers, and employers should document their responses to such matters.
  • Both the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act under the FFCRA contain anti-retaliation provisions.
  • Retaliating against employees because they raise good faith concerns about safety may lead to claims under both the OSH Act and the National Labor Relations Act.
  • Review the organizational structures and reporting mechanisms for employees to express concerns.  Are supervisors trained to take the complaints seriously?  How are concerns escalated to decision makers?  Do employees feel comfortable raising complaints?
  • Remain calm when concerns are raised. If the complaint is unfounded, the investigation will usually reveal that. If necessary, take steps to correct the problem.
  • Seek legal counsel in situations that are ripe for discrimination or retaliation lawsuits.
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Erin Ebeler Rolf

Division 6 (Labor & Employment), Woods Aitken LLP Denver, CO

Laura J. DePetro

Division 9 (Subcontractors and Suppliers) and Young Lawyers Division, Woods Aitken LLP, Denver, CO