Labor and employment attorney Gerald Maatman Jr. is tasked with advising clients on avoiding potential legal pitfalls that may arise in the workplace because of the coronavirus.
However, he admits that nothing in his 40-plus years specializing in labor law has prepared him for the challenges employers face because of the coronavirus, which has infected more than 6 million people in the U.S. and killed more than 196,000 people since January.
“I thought I had seen everything and then COVID-19 occurred,” said Maatman, senior partner of Chicago-based Seyfarth Shaw LLP, on Thursday at the virtual American Shipper Global Trade Tech summit. “I’ve worked harder and longer hours to assist employers with all of the challenges and the changing playing field that they find themselves on today. It’s been extraordinary times.”
Businesses are already starting to see a spate of lawsuits filed by employees who were furloughed or laid off because of the coronavirus pandemic.
Maatman expects the majority of litigation is going to be filed in the first and second quarters of 2021. However, more than 1,000 COVID-19-related lawsuits have been filed across the country since March.
“Companies are battening down the hatches and COVID litigation is going to be with us for the next five to seven years,” he said. “If you think of litigation as a bell jar curve, we’re just starting on the front end of the upward curve. We have a long way to go to get through it all.”
COVID-19 task force
In March, Maatman said his firm created a task force of lawyers from across the country to track all new laws and regulations and lawsuits stemming from COVID-19 claims. The initial one-page spreadsheet has grown to more than 800 pages in the past six months, he said.
“What happened is that at the local, state level and federal levels, a series of laws and regulations were passed,” Maatman said. “If you’re a nationwide logistics company, you’ve got a bit of a patchwork quilt in front of you in terms of all the duties and requirements.”
Complying with employee leave laws and responding to workplace safety concerns is an “incredible task” for any human resources director or business owner amid the coronavirus pandemic, he said.
His firm is advising employers to follow five basic guidelines to avoid potential legal pitfalls stemming from workers complaints during COVID-19.
Use common sense
“Remember that any personnel decision you make — anything you do in this day and age — has to pass the social media test,” Maatman said. “How does this look to your customers? How does this look to your employees? How does it look to an outsider looking in at your business? So the fundamental HR blocking and tackling of doing the right thing pays incredible dividends in this time of stress.”
SUBHEAD: Diffuse the problem before it becomes a bigger issue
Addressing small disputes before they become a bigger problem is key to avoiding class action lawsuits and large payouts.
“You want to make sure that an individual lawsuit doesn’t turn into a giant lawsuit,” Maatman said. “Diffusing a problem while it’s small and before it turns into a big problem has lots to do with saving money and avoiding huge claims.”
Understanding employer liability laws
Employers need an understanding of various laws that shield employers from liability, he said.
While employers in the health care industry or first responders may have the greatest amount of immunity by lawmakers, the rules are different for profit companies and vary by state.
“In South Carolina, there’s a lot of immunity, but in California, there’s virtually no immunity,” Maatman said. “The only way that’s going to be solved is on the federal level.”
However, determining if a company has immunity is complicated because of the roadblock between the Democrats and Republicans in the U.S. Congress.
“I think the best way to make decisions, if you’re a company, is assume there is no immunity,” he said. “Try to make the best, most measured and sound business decisions you can on the theory that those are the best defenses if you’re challenged.”
Companies must innovate, adapt during COVID-19
Developing a sense of creativity relative to applicable legal standards is crucial for businesses to innovate and adapt amid the coronavirus pandemic.
Plaintiffs’ attorneys are experiencing cash flow issues right now and tend to settle their cases for less money than before COVID.
“A very creative outside-the-box thinking, in my experience, has been the winning formula for these cases,” Maatman said. “I’ve also been able to say, ‘We’ll settle, but we’re going to pay it one month at a time over the next 10 months and stage the payments.’”
The old way of doing business, even in the courthouse, has changed completely, he said.
“There’s been a revolution in the way in which cases are brought and defended,” Maatman said.
Practicing The Golden Rule
Practicing The Golden Rule is crucial to a company’s success during these unprecedented times. This can be achieved by ensuring workers know the rules and that employers interpret the rules consistently and fairly in the workplace, Maatman said.
“Would you want to be heard and treated the same way if the tables were turned and you were the recipient of the employer’s decision?” he said. “Doing the right thing and doing it in a fair way tends to be, at all times, the best possible defense to these sorts of problems.”
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