Employers: Every Move You Make, Every Step You Take (Could Be Retaliation): How to Police Your Employees During A Pandemic

In the immediate short term, as they deal with the difficulties imposed by COVID-19, employers are making employment decisions on a daily and weekly basis, not only adding to their stress levels, but also increasing their risks of liability exposure for retaliation claims. Because of the many employees affected by these decisions, the eyes which are scrutinizing them have exponentially increased. Every terminated and laid off employee (and their lawyers) will have the opportunity to question their former employer’s decision through the lens of COVID-19 and the laws that have accompanied it.

In the age of COVID-19, employees have a new front on which to wage various causes of action. All of us, including employers and employees, are currently experiencing heightened stresses and challenges implicating a wide swath of physical and mental health and safety. Plus, the related federal, state, county, and city rules, regulations, orders, and protocols are changing almost daily and may continue to change as the current pandemic wanes, creates new hotspots, or returns in additional ‘waves,’ as is common with viral-based disease. Employers must therefore act with a heightened awareness when terminating an employee (or subjecting an employee to any potentially adverse employment action) at this time and for the near future, particularly if there can be any intimation the action was related to health or safety issues.

California courts are chock full of cases of former employees suing their former employers for wrongful termination (or other adverse employment actions) based on allegedly unlawful reasons. Generally, these claims allege that the employer terminated the employee for a reason that violates statutory or administrative law, such as a violation of the Fair Employment and Housing Act, the California Family Rights Act, or the Americans with Disabilities Act, or the related regulations. These cases include termination for unlawful discrimination, harassment, or retaliation for such reasons as:

1. Retaliation for actions such as whistle-blowing, reporting unwanted and unlawful conduct by a supervisor or co-worker, complaining about a failure to pay proper wages, or taking a lawful leave of absence for health reasons.
2. Constructive termination based on a hostile work environment or on an unlawful failure to accommodate a bona fide disability.
3. Unlawful discrimination based on a prohibited characteristic such as age, gender, disability, or numerous other statutory prohibited characteristics.

No matter the specific causes of action implicated in a particular suit involving a wrongful termination, a plaintiff employee almost invariably includes as a cause of action the common law tort of wrongful termination in violation of public policy. This cause of action exists when the employer terminates the employment of an employee in violation of a “fundamental” public policy, which must be:

• Based on a statute (or a regulation or rule based on the statute) or on a constitutional provision.
• For the public’s benefit and not only to the benefit of the plaintiff employee.
• Well-established when the plaintiff employee is terminated.
• Substantial and fundamental.

Stevenson v. Superior Court (1997) 16 Cal.4th 880, 894.

Therefore, a plaintiff employee can argue, as has been frequently argued by supporting case law, that a violation of any statute involving a termination implicates a fundamental public policy. After all, the argument goes, the Legislature would not have enacted the law if the policy behind it was not fundamental.

But, the circumstances which fall under this cause of action are even more broad. This cause of action does not require a strict violation of law, but can be asserted for a termination violating a constitutional provision. The California Constitution broadly protects citizens’ rights which include “enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal. Const., art. I, § 1. Therefore, a plaintiff-employee has ample opportunity to argue that this cause of action applies in a whole range of cases where there is a termination alleged to be wrongful, but does not violate statute.

As an example, California held that an employer who terminates an employee in retaliation for protesting unsafe working conditions (in this case, extended working hours for drivers) violates a fundamental public policy. Cabusuela v. Browning-Ferris Industries of California, Inc., 68 Cal.App.4^th 101, 107 (1998).

In many cases an employer may have valid reasons for terminating an employee, such as for poor on-the-job performance or because of a lack of revenue due to the economic downturn. However, such a termination at this time may lead to a suit involving wrongful termination in violation of public policy if the employee expressed any previous health-related concerns to the employer, such as:

• Complaining of inadequate social distancing or face-mask wearing at the office or while engaged in business-related activity away from the office.
• Not wanting to return to the office due to health concerns for him or herself or for his or her family (e.g., the employee lives with an immuno-compromised spouse, child, or parent).
• Requesting a reasonable accommodation for the above, or for mental stress and anxiety created during this pandemic, especially if the employee was treated for this stress and anxiety.

The terminated employee may believe the termination was related to such communication about a health linked concern (a protected activity) and may allege retaliation in the form of wrongful termination in violation of public policy.

For a cause of action for wrongful discharge in violation of public policy, the violation must be a substantial motivating reason for the discharge. Davis v. Famers Insurance Exchange, 245 Cal.App.4^th 1302, 1321-23 (2016). Therefore, to minimize the chances of a successful suit, employers must be able to clearly show there was a lawful reason significant enough for the termination, independent of any potentially wrongful conduct.

Therefore, in the above cases, if the employer asserts that the termination was caused by:

• Poor employee performance, the employer should have valid and documented performance reasons, properly memorialized in the employee’s personnel file, for terminating the employee.
• An economic downturn, the employer will have less risk of a successful lawsuit if layoffs were broad-based and not limited to the employee or a small group. However, there may be circumstances weighting against an employer. For example, the employer’s business may not have been particularly hard hit versus other businesses staying open, or where the employer received PPP financial assistance.

In every lawsuit, the judge and jury consider the facts and in determine the liabilities, if any, of the parties. It is possible that, given our shared experiences around the disease and the related government lockdowns, that judges or juries might be more sympathetic to the ‘little guy’ who lost his job, rather than the employer who will continue to function beyond any particular termination. Attorneys frequently argue the emotion of the matter in addition to the facts. With COVID-19, they have another powerful, emotional tool at their disposal.

Employers know that there is no employer conduct that can eliminate the risk of suit by former employees. There is only employer conduct that can minimize that risk. There are significant costs in both money and time related to any lawsuit, even if the suit does not proceed to trial or the court eventually rules for the employer.

As a result, employers need to have a heightened awareness regarding terminations and keep their side of the street especially clean at this time. Employers should consult competent and experienced employment attorneys if they have any concerns or questions.