Avvo 1-on-1 is a new Avvo question-and-answer article series featuring candid interviews with attorneys in various specific fields of law.  The goal of this series is to humanize intimidating law topics for the everyday person through stories, anecdotes, and other real-life experiences shared by attorneys.   

Our next installment features an employment attorney, Justin Peters.

Peters represents employers in all aspects of private employment litigation, including defending claims for wrongful termination, discrimination, harassment, retaliation, and leave of absence violations. Peters handles matters in state and federal courts and before various administrative agencies, including the U.S. Department of Labor, the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, and the California Department of Labor Standards Enforcement. Peters also regularly counsels employers on wage and hour related matters, employee and independent contractor agreements, and human resources policies.

Peters received J.D., Chapman University, Dale E. Fowler School of Law B.A., University of California, Irvine

Have you received more client inquiries during the pandemic or less?

We received increased client inquiries during the COVID-19 pandemic. As expected, the influx of inquiries largely mirrored the news cycle. Early on in the pandemic, many questions involved how to safely move employees to remote work, whether a particular client qualified as an “essential business” and could remain open, or how to comply with lockdown and quarantine orders. As courts closed down, we saw a slowdown in litigation. The questions then moved to advising on new emergency legislation, how to qualify for governmental assistance programs, and conducting furloughs and reductions in force. More recently, as the courts and businesses have reopened we have seen an uptick in litigation, and have been advising on how to safely return employees to the workplace, as well as new California employment legislation. 

Do you anticipate things will go back to normal once a vaccine is administered, or are there damages in the employment industry that’ll be more difficult to repair?

Even after a vaccine is administered, we do not see things returning to “normal.” For example, it appears that telework will continue to be prevalent well beyond the pandemic. Regarding “damages,” it depends on what sector of the employment industry we are talking about. For example, online retailers, supermarkets, grocery and food delivery services, and remote technology platforms have seen a massive increase in demand and therefore have had to hire to meet demand. These sectors appear to have suffered little damage.

Other sectors, such as hospitality, travel, and dining have suffered considerably due to lockdown orders and travel restrictions, requiring unprecedented layoffs and furloughs. For example, American Airlines recently announced it will have to lay off 19,000 employees if federal assistance is not received.  

However, given that we are still amid the pandemic, whether these sector-specific “damages” are lasting is yet to be seen.  

What will be the long term effect of this pandemic on the employment industry?

As noted above, it appears that telework is here to stay. Most notably, large employers in the technology sector, such as Twitter and Facebook, have taken leading stances on this issue by allowing employees to work from home “permanently.” In the legal industry, we are now conducting client meetings, interviews, depositions, and hearings remotely—using platforms such as Zoom. More generally, while we believe some employment sectors will return to some level of normalcy after the pandemic, others, like hospitality, may suffer for years to come. 

Do you anticipate there will be enough businesses open/jobs available to match the unemployment numbers?

There will always be cycles in employment. Before the pandemic, we saw some of the lowest unemployment rates in history. Although the pandemic brought unprecedented rates of unemployment, an economic downturn was bound to happen eventually. Growth in new sectors may help offset some of the unemployment numbers in the months to come. It is also important to remember we are not through this pandemic. Therefore, the full extent of its damage may depend on whether we see a second wave and subsequent closures. 

If, due to the virus, an employee doesn’t feel safe returning to work and is fired because of it, is there legal action that can be taken?

It largely depends on the specific circumstances, and therefore, the particular analysis will be highly fact-intensive. For example, under the Occupational Safety and Health Act (“OSHA”), hesitant employees may be able to refuse to return to work if they are in “imminent danger,” which is defined as a danger “which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” Likewise, a health hazard, exposure to a toxic substance or another hazard must “shorten life or be immediately dangerous to life and health or cause a substantial reduction in physical or mental efficiency or health, even though the resulting harm may not manifest itself immediately” to satisfy the standard. If these circumstances are found to exist, a terminated employee could bring a claim against their employer.  

Liability exposure may depend on whether an employer implemented adequate safety procedures. For example, when and to what extent an employer implemented social distancing, frequent sanitation, providing necessary personal protective equipment (PPE), and other measures recommended by the Centers for Disease Control and Prevention (“CDC”) and OSHA may be relevant to the defense of such claims.. Due to the fluidity of the pandemic and associated guidelines and best practices, as an alternative to termination, employers may consider placing hesitant employees on a leave of absence.  

In your opinion, in retrospect, what could’ve been done to mitigate the damages to the employment industry caused by this pandemic?

Although many businesses worked quickly to facilitate employees working from home, having telework policies or procedures in place could have made the transition more seamless. Moving forward, employers may wish to routinely update their policies, as well as their server capacity to adequately support employee telework.  

Employers would also have benefited from clearer and earlier guidance from the federal government on the use of face coverings to slow the spread. Inconsistent guidance on closures and re-opening also may have hampered efforts to curb the pandemic.  

Have you received more client inquiries during the pandemic or less?

We received increased client inquiries during the COVID-19 pandemic. As expected, the influx of inquiries largely mirrored the news cycle. Early on in the pandemic, many questions involved how to safely move employees to remote work, whether a particular client qualified as an “essential business” and could remain open, or how to comply with lockdown and quarantine orders. As courts closed down, we saw a slowdown in litigation. The questions then moved to advising on new emergency legislation, how to qualify for governmental assistance programs, and conducting furloughs and reductions in force. More recently, as the courts and businesses have reopened we have seen an uptick in litigation, and have been advising on how to safely return employees to the workplace, as well as new California employment legislation. 

What will the employment industry look like in the next 6-12 months?

This is a tough question to answer in a time where information seems to change from hour to hour. It does not appear we will be back to “normal” within six months. Many businesses have already planned to keep their employees working from home for several more months, at the very least. Upcoming large gatherings and conferences may continue to be canceled or moved online.    

By next October, we hope much of the pandemic madness will be in the rearview mirror.  

In 12 months maybe when we will start seeing a return to “normalcy.” 

 

 

The post Avvo 1-on-1: How Will COVID Affect The Employment industry in 2021 appeared first on AvvoStories.

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