I’ll be honest. I don’t really like employment law.
Wait a minute, Wolfe. Your little profile at the end of these posts says you do non-compete and trade secret litigation. Isn’t that “employment” law?
Not really. I see departing employee litigation as essentially contract and tort law (with a statutory overlay). In contrast, when you say, “employment law,” I think of a 100-page employee manual nobody reads that spells out how sick leave accrues and what happens to it when an employee quits.
Blah, blah, blah . . .
Here’s when it hit me. Years ago, I was leaving a big law firm to go to work for a much smaller firm, and the big firm sent out an email attaching the new office dress code with thanks to the Dress Code Committee.
Dress Code Committee, I thought. Seriously? They had to have a whole committee for this? And the dress code really got down in the weeds. There’s something comical about an official memo from a team of elite lawyers using terms like “spaghetti straps” and “crop top.” Employment lawyers live for stuff like that. Me, not so much.
I think it boils down to two reasons. First, I don’t like authority and nit-picky rules. My employee manual would just say “dress appropriately and be cool to each other.”
Second, I don’t like the whole “paper the file” feel to employment law. Who actually reads that 100-page handbook? It feels like it’s just there for the employer to cite if there’s a problem.
But I get it. Obviously, my attitude isn’t going to cut it in corporate America. Employers are trying to avoid liability, and a vague directive that sounds like something from Bill and Ted’s Excellent Adventure creates too much space for discrimination. If the manager was cool with the white male employee wearing Birkenstocks with wool socks, why did he have a problem when the minority employee did it? A detailed dress code avoids this problem.
The same points apply to all this COVID-19 employment law stuff. Everybody’s got a COVID-19 blog post, a COVID-19 webinar, a COVID-19 client alert. I’m sure there’s a COVID-19 employment law podcast. Everybody’s jumping on the bandwagon, but it just doesn’t excite me.
If I ran the zoo, most office employers would use this crisis as an opportunity to ditch their expensive office leases and have more people work from home. I’ve got a friend in the business world who recently told me that’s exactly what he’s doing with the company he runs. Think how much time and gas money his employees will save.
Plus, as Brett Holubek reports in Remote Work and COVID-19, one comparative study found that working from home resulted in a big boost in productivity and a significant reduction in employee attrition.
But again, I get it. WFH won’t work for everybody. Most employers will eventually need guidance on how to bring employees back to work, and other employment law issues raised by the pandemic.
Fortunately, I don’t have to reinvent the wheel. Instead, I present this curated list of the best COVID-19 employment law tips I’ve gathered from lawyers who actually like employment law.
I remember when “curated” only applied to museums. Here, it means I went through a rigorous process of scrolling through my LinkedIn feed and Googling some employment lawyers I know.
1, 2, 3, 4, 5, 6, 7, 8, 9 . . .
It’s the 10 COVID commandments.
#1 Avoid WARN Act issues
The WARN Act generally applies to employers with 100 or more employees, and it requires giving 60 days’ notice of mass layoffs. If you have a hundred or more employees and laid off 50 or more of them temporarily, you may need to act quickly to bring employees back to avoid violating the WARN Act. Holubek’s Texas Labor Law Blog covers the details at How to Reopen a Business and Recall Employees.
#2 Offer a severance agreement
I often get calls from employees who lost their jobs and want to know if the employer is required to pay severance compensation. The short answer is no. Unless the employee has a contract that says otherwise, the employer can lay off the employee and doesn’t have to pay a dime more than what the employee earned before the layoff.
As my friend Stanley Santire once put it, Texas follows the at-will employment rule like most states, but the difference is that Texas really means it. Generally, you can fire an employee for any reason or no reason.
I say generally, because of course there are exceptions. Certain kinds of discrimination and retaliation are unlawful. For that reason, it’s often in the employer’s interest to get a release from the employee.
The employer should consider offering severance in exchange for a release. This lets the employer do something good—cushioning the blow of a layoff—while getting something in return. In the words of Alexis de Tocqueville, it is intérêt personnel bien compris.
If you require employees to sign a release, be sure your form of release complies with the Age Discrimination in Employment Act (ADEA), including a 21-day notice period and a seven-day revocation period.
#3 Be selective about enforcing non-competes
Speaking of severance agreements, sometimes employers try to include a non-compete in the severance agreement. If the employee didn’t already have a non-compete, this is going to be hard to enforce. I’m not saying it’s impossible, but it’s difficult.
On the other hand, if the employee already had a non-compete, then in theory the fact that the employer laid off the employee does not prevent the employer from enforcing the non-compete. I say “in theory” because if you have to file a lawsuit to enforce it, the judge is going to have a lot of discretion, and most judges will be sympathetic to laid off employees in this crisis, as they should be. I explained this in my recent post Can They Lay Me Off *And* Enforce My Non-Compete?
So think about whether you really need to enforce the non-compete. Do you have evidence the employee has taken truly confidential information? Is the employee trying to divert key customers to a competitor? Then you may have no choice. Otherwise, maybe you’ve got bigger fish to fry.
#4 Protect real trade secrets
There’s always a chance a disgruntled former employee will try to use a company’s confidential information against it. Even if the employee doesn’t have a non-compete, you can use trade secrets law to try to prevent this. See my posts When Is a Customer List a Trade Secret? and The Price Undercutting Theory in Texas Trade Secrets Litigation for guidance on some common scenarios.
#5 Manage remote workers reasonably
Here’s another one where I’m probably not the best guy to ask. My Work From Home policy would be something like “stay in touch and keep doing great work.” My philosophy is if you want employees to act like adults, don’t treat them like children.
But I realize some employers will need a little more than that. So you may need to adopt some specific policies setting out expectations about things like responding to emails, Zoom conference etiquette, and returning phone calls.
Just don’t make the policies too rigid. Don’t be “that guy” who expects his midnight email to be answered immediately, and don’t be that company that requires employees to install webcams so you can keep tabs on them.
There is one work from home issue where employers may need to be more strict: cyber-security. It will be even more important for employees to use secure internet connections, take common-sense precautions with devices containing company data, and be on the lookout for scams like “spear-phishing.”
Pro tip: an early morning email from your managing partner simply stating “can you do me a favor?” may not be what it seems.
And if you’re the managing partner, never send an email like this.
You can learn more about data privacy issues with employees working from home in this episode of the Vorys at Work podcast with Jackie Ford and Lisa Reisz. (I told you there would be a podcast!) And Brett Holubek addresses a host of work from home issues at his blog post, including making sure hourly employees know they are not to work “off the clock.”
#6 Keep employees safe and minimize potential liability
Protecting employees from contracting the virus when they return to work breaks down into two categories: (1) screening, and (2) social distancing.
The challenge with screening is to protect employees from the virus while respecting employee privacy and avoiding discrimination. Haynes & Boone has a helpful checklist with suggestions on how employers can screen applicants and employees for symptoms of COVID-19 the right way:
- To avoid discrimination, the employer should follow the same screening practice for all employees in the same type of job.
- For consistency and documentation, consider using a written questionnaire.
- Keep the results of any screening confidential.
Should screening include temperature checks? This strikes me as a little too much. If you’re still that concerned, maybe it’s a sign you should not be bringing employees back yet. But if you must bring them back, and especially if social distancing is not feasible in your workplace, temperature checks may be a necessary part of your screening.
The checklist cited above has some helpful Do’s and Don’ts for this. It also has good common-sense suggestions for on-site safety and social distancing strategies. Also check out Seyfarth Shaw’s Strategies for Developing a Return to Work Action Plan.
#7 Comply with the Family First Coronavirus Response Act
The Families First Coronavirus Response Act makes certain employees eligible for paid sick leave and expanded family medical leave, and it provides refundable tax credits to small and midsize employers to reimburse them for the costs of leave related to COVID0-19.
#8 Don’t underreact or overreact to COVID-19 positive employees
Don’t let an employee who tests positive for COVID-19 come to work. That should be obvious. Then again, I thought it would be obvious that injecting yourself with disinfectant is not the optimal treatment.
In theory, you also need to keep an employee’s positive COVID-19 status confidential. I say in theory because, let’s be real, his co-workers are going to know. I suppose the point is that people should hear it from the employee himself, not from management. As explained on the Vorys at Work podcast, employers should prepare managers ahead of time on how to handle this.
#9 Avoid disability discrimination
The Americans with Disabilities Act (ADA) and other employment laws still apply, but reasonable employer responses to COVID-19 are likely to be accommodated. The best resource on this topic is probably this EEOC page with FAQs and the updated publication Pandemic Preparedness in the Workplace and the Americans With Disabilities Act.
My main takeaways: employers may screen employees and applicants for COVID-19 because it poses a direct threat to health in the workplace, the ADA does not prevent employers from requiring employees with COVID-19 to leave the workplace, and a medical exam is permitted after a conditional offer of employment.
The EEOC page also addresses reasonable accommodations for employees who, due to an existing disability, are at higher risk from COVID-19. “Reasonable accommodation” is always a difficult and fact-intensive issue, but the bottom line is that employers should be flexible.
#10 Be flexible
Flexibility. That seems to be the theme of the day. We’re all going to have to find new ways to be flexible, especially when more people go back to work.
A Very Special Cinco de Mayo Special
If you want more details, mark your calendar for May 5th. You can’t go to your favorite Tex-Mex joint for margaritas, but you can tune in to a great webcast from TexasBarCLE called Top 10 COVID-19 Employment Law Issues. Hosted by Brett Holubek of the Texas Labor Law blog and Zach Wolfe of Five Minute Law.
Wait a minute. Wolfe? He doesn’t even like employment law.
I know, I know. It’s a dirty job. But someone’s got to do it.
Zach Wolfe (firstname.lastname@example.org) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. This post is dedicated to all the 80s kids who stayed up too late to watch Late Night with David Letterman.
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.