The wave of coronavirus related litigation has already begun and will no doubt continue many years into the future, especially considering the case backlog that the pandemic has exacerbated. As described in recent articles, areas of litigation include (but are by no means limited to)
- Price gouging
- Failure to provide good faith insurance coverage on claims for lost profits
- Asset impairment and improper financial reporting
- Fraudulent claims and misrepresentations
- Breach of contract claims with force majeure defenses
In addition to the above are claims for wrongful termination, with many invoking whistleblower protections. A large number of claims asserting retaliation against whistleblowers related to COVID 19 matters have been filed with the Occupational Safety and Health Administration (“OSHA”), the National Labor Relations Board (“NLRB”), and through the courts. Many of the wrongful termination claims are from health care workers or those working in essential businesses, who allege retaliation for raising concerns regarding unsafe working conditions. Such claims may involve risks to the individual, other employees, patients or the general public. For instance, an executive fired from a nursing home has sued the facility that formerly employed her, asserting her termination for insubordination was retaliatory and a result of her (i) reporting concerns regarding the facility’s COVID-19 response and (ii) refusing to follow directives she believed were unsafe or insufficient. Amazon has also publicly faced allegations of unsafe working conditions and whistleblower claims from its fulfilment ranks.
Other types of COVID-19 related employment claims assert termination was improperly related to an employee’s request for leave or accommodation amid COVID-19 related needs, concerns or directives. Many of these requests are protected under the Families First Coronavirus Response Act (“FFCRA”) or the Americas with Disabilities Act (“ADA”). Examples of such claims include an employee who was fired after requesting leave to care for her child whose school was closed due to the pandemic or an employee who was fired after requesting leave to self-isolate with COVID-19 symptoms.
If an employment decision is found to have been made in retaliation for an employee’s good faith, reasonable complaint, for following a public health order, or under a covered basis for leave or accommodation to work remotely, they may be eligible for reinstatement, lost wages (including prejudgment interest), and other compensatory and punitive damages. As punitive damages are often a multiple of the compensatory claim, employers face substantial exposure.
The easiest and least expensive means to minimize whistleblower retaliation claims is by providing a channel for employees to report concerns in a protected way. Independent whistleblower hotlines provide anonymous reporting, multiple avenues for detailed reporting, and an established chain of communication to those tasked with investigating the issue internally. There are established best practices to ensure a whistleblower or ethics reporting hotline is optimized to (i) provide employees an outlet to voice and resolve their legitimate concerns and (ii) offer some protection for employers against claims of retaliation.
Fulcrum Inquiry operates a whistleblower collection and reporting systems that improves governance processes for both businesses and nonprofit organizations. Fulcrum’s financial, accounting and economic experts also assist lawyers with calculating lost income and economic damages associated with wrongful termination and other employment matters, through both direct employment of experts and with our interactive settlement tool.