Are Covid-related labor lawsuits moneymakers or a gamble?

It's the latest trend, defense attorneys say: a page on the websites of plaintiffs' firms telling workers they can file claims against their employers for not complying with COVID-19 rules.

As employers reeling from the economic crisis continue to lay off workers they can no longer afford to pay, and laws and regulations around how they should navigate the pandemic keep changing at a hard-to-manage pace, defense attorneys have started to understand COVID-19 employment lawsuits as a newly lucrative product for plaintiffs' attorneys to sell.

But the plaintiffs' attorneys filing these lawsuits say the situation is not so straightforward. If constantly shifting employment laws and regulations have exposed employers to more liability, they've also made some plaintiffs' attorneys reluctant to take on just any case that alleges an employer has violated these rules. Who knows, these attorneys ask, when the rules will change again?

For weeks, Yesenia M. Gallegos has been noticing the pattern. "Personal injury lawyers or plaintiff-side lawyers ... have updated their websites and dedicated some of their marketing information to recruit clients who want to get advice on their rights related to Covid," said the attorney, who represents employers as partner at McDermott Will & Emery LLP. "I imagine they have attorneys in their office who are trying to stay on top of Covid employment workplace rules to create ... lawsuits to support allegations employers have not done enough."

Kelly O. Scott, a partner at Ervin Cohen & Jessup LLP, agreed there's been a shift. "I think plaintiff firms are beginning to market this way, yes," he said in an email last week, "using COVID-19 as a hook to get claimants in the door that were laid off."

So far, Scott said, the employment claims he's seen are what he describes as standard save for a Covid twist, allegations that an employer failed to accommodate an employee who feared exposure to the coronavirus, or that an employer retaliated or wrongfully terminated an employee for speaking up about safety concerns. Claims that employers have not complied with the Cal-WARN Act, which requires employers to give employees at least 60 days notice before a plant closure or mass layoffs, could also be in the works, Scott said.

If the types of employment cases being filed are not especially novel, the numbers stand to increase as the business shutdowns wear on -- especially if plaintiffs' attorneys continue to advertise the possibility of filing COVID-19 employment claims, said Gallegos, who compared the opportunities the pandemic has created for plaintiffs' attorneys to those created by the state Supreme Court's decision in a landmark wage and hour case eight years ago.

When the high court issued its 2012 opinion in Brinker Restaurant Corporation v. Superior Court, which clarified an employer's obligations when it came to their employees' meal and rest breaks, "it really opened the floodgates to increase wage and hour litigation," Gallegos said. She added lawyers previously outside of California, non-employment lawyers, and defense attorneys began pursuing plaintiffs' wage and hour cases because they became so lucrative. Brinker Restaurant Corp. v. Super. Ct., 53 Cal. 4th 1003 (2012).

But Mark T. Quigley, a partner at plaintiffs' firm Greene Broillet & Wheeler LLP, suggested the situation wasn't so simple. His firm launched a webpage dedicated to COVID-19 claims because it was receiving calls every day from workers who felt they had been wronged by their employers during the pandemic, but Quigley said he's been reluctant to take on many cases.

"Here's the dilemma: We're obviously very sympathetic to the employees who have been terminated ... but the law right now is kind of up in the air where state-wide there's discussion about perhaps giving immunity or limited immunity to certain employers," he said. "On the federal level, you have the Senate Republicans ... considering giving blanket immunity to employers."

There's no point, Quigley explained, in taking on cases that may no longer hold up in court a year or two from now due to new legislation. He added he would not hesitate to take on cases related to safety concerns, however.

"Currently the law in California is very good for an employee who believes they've been negatively impacted ... because they complained about safety in the workplace," he said.

James Hawkins APLC, another plaintiffs' firm, launched its own webpage advertising COVID-19 litigation opportunities earlier this year when many employees began working from home and started reaching out to the firm about issues including misclassification for exempt workers, reimbursement for work equipment, and various wage and hour issues, said Christina Lucio, of counsel at the firm.

But, like Quigley, Lucio also said the firm has faced challenges with COVID-19 cases.

"There are a lot of businesses that are on the cusp right now, so there's the challenge of: What's the best way to proceed? Because if you've got an entity that may be very close to bankruptcy ... the question becomes: What can you do?" she explained.

"We view our role ... as trying to make sure businesses are complying with their obligations under the law. But if you're dealing with an entity that's going to be defunct soon, or is entering bankruptcy, I think there are different considerations."