Has COVID-19 Made It Easier for Employees to File "Whistleblower Retaliation" Lawsuits?

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Recent class action litigation by New York court police demonstrates how long-standing state whistleblower-protection laws can lead to litigation for unwary employers during the COVID-19 pandemic. As states continue to roll out and revise return-to-work plans with protective measures to ward off COVID-19, employees who complain that employers are not following those measures to the letter might file “whistleblower retaliation” suits if they are subsequently terminated or otherwise negatively impacted at work. As employers review and implement return-to-work guidelines, they need to factor in this risk and take steps to mitigate it.

Whistleblower Protection Laws

Approximately half of the states have whistleblower protection statutes that protect employees from retaliation for exposing unlawful or unethical actions at work. The laws vary from state to state with regard to what employee actions trigger protection. Some states like Connecticut, Michigan and Illinois protect employees only if they actually report a legal violation (or suspected violation) to government authorities (see Connecticut General Statutes § 31-51m, Michigan Whistleblowers’ Protection Act, Mich. Comp. Laws Serv. § 15.369, and Illinois' Whistleblower Act, 2003 ILL. SB 1872). Other states, however, like New Jersey, New York, Florida or California, do not require outside disclosure. New Jersey’s Conscientious Employee Protection Act, New York Labor Law § 740, Florida’s Private Sector Whistleblower Act (Fla. Stat. § 448.102), and California Labor Code Section 1102.5 protect workers from retaliation for merely opposing or refuse to participate in allegedly unlawful conduct.

While each state’s whistleblower law varies, one common feature is that they generally allow employees to file suit if they experience an adverse employment action (like termination) after engaging in legally protected activity. Many of these laws allow employees to seek significant damages along with attorneys’ fees if they prevail. Another common feature of these laws is that they generally do not limit the types of alleged legal violations that employees can oppose or threaten to disclose in order to be protected. Thus, for instance, an employee who complains about alleged violations of municipal ordinances has as much right to bring a suit as one who complains about alleged violations of federal criminal statutes.

One consequence of the COVID-19 pandemic is the proliferation of employment-related rules coming in the form of executive orders by state governors or guidelines by state and federal government agencies (e.g., the Centers for Disease Control and OSHA). Many of the executive orders, for example, contain workplace prohibitions or mandates that often are unclear. As a result, employers can find themselves facing accusations by employees of failing to comply with such orders.

The Pending New York Law Suit

A union representing over 1,500 New York state court officers and its president filed a law suit in federal court against the court administration for allegedly failing to provide enough protective measures against COVID-19, including failing to properly sterilize courts, establish quality measures and provide adequate personal protective equipment. According to the complaint, Dennis Quirk, the president of the New York State Court Officers Association wrote to Chief Judge Janet DiFiore on March 16, 2020 informing her of a severe shortage of hand sanitizer, paper towels, masks and wipes. Subsequently, Mr. Quirk alleges that the defendants interrogated him, threatened him with suspension and possible termination of employment.

Among other claims, the plaintiffs allege a violation of New York’s whistleblower statue, New York State Labor Law § 740, and failure to provide personal protective equipment under Occupational Safety and Health Administration (“OSHA”) regulation 29 C.F.R 1910.132(a). As a result of these alleged failures by Judge DiFiore and the Office of the Court Administration, the union claims that some of its members contracted COVID-19. The class action law suit claims at least $2 million in damages.

Practical Steps for Employers

One way to mitigate the risks of similar litigation is to review carefully the return-to-work guidelines applicable to each workplace to determine whether the guidelines can be fully implemented before reopening that workplace. Another step is to clearly communicate to employees all compliance measures being implemented to minimize the potential of employees making incorrect assumptions. Another important way employers can minimize the potential for retaliation (and discrimination) claims is to have clear employee performance criteria, workplace rules and a progressive disciplinary policy. Having clear rules and policies in place will allow an employer to demonstrate justification for any disciplinary action or termination of employment if necessary.

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