The COVID-19 health crisis has led to mass unemployment and economic instability for many workers, across every industry. Although most employees are “at-will” and can be fired for any reason, or no reason at all, this does not mean that there is no legal recourse for terminated employees. These are the three questions to ask if you have been fired during the pandemic:
1. Why me?
An employer’s decision to select particular employees for layoff can mask discriminatory motives. Layoffs involve management choices, and those choices can violate federal and state discrimination laws which protect employees from discrimination because of age, sex, sexual orientation, disability, race, family status and a panoply of other protected categories.
Older workers are particularly susceptible to discrimination in mass layoffs, as they often have higher salaries and are subjected to ageist stereotypes that they may not be as suited to remote/virtual work as compared to millennials. Another high-risk group in layoffs are women with young families as they may be subject to a “motherhood penalty.” Women with child care responsibilities are often the victim of stereotypical assumptions concerning their availability or commitment to their job. Ironically, that discriminatory mindset might be fueled by The Families First Coronavirus Response Act, which went into effect April 1, that generally requires companies to pay up to 12 weeks of partially paid family and medical leave to workers who need to care for a child in the event of school or daycare closures because of the COVID-19 outbreak.
In sum, the “why me” question demands a focus on who was selected for termination in a layoff and who kept their job. Comparing yourself to the experience and qualifications of those employees who are retained can provide a window as to whether the business determination was based on legitimate factors or instead was a pretext for discrimination.
2. Did I receive a WARN Act notice?
Implementing layoffs may trigger the requirement to issue advance written notice to employees and certain government agencies under the federal Worker Adjustment and Retraining Notification Act (WARN Act). The WARN Act applies to employers with at least 100 employees and requires 60 days of advance written notice of a mass layoff at a single site of employment to affected non-union employees, union representatives, and certain government officials if at least 50 full-time employees comprising at least one-third of the workforce at the site suffer an employment loss. The purpose of the law is to give employees a 60-day cushion to find a new job while maintaining pay and health insurance coverage. An exception to the notice requirement is available for “unforeseeable business circumstances.” For many businesses, the COVID-19 crisis may qualify as an unforeseeable business circumstance but under this exception, notice is still required and employers are still required to provide “as much notice as is practicable.” Employers may be liable for damages of 60 days of pay and benefits under the WARN Act for any period of unjustifiable delay in issuing the notices.
Bottom line is that COVID-19 does not excuse an employer from providing WARN notices; an employer still must provide as much notice as is practicable and if it ignores this requirement, the laid off employees may be entitled to 60 days of pay.
3. Am I owed overtime pay for work I previously performed?
Termination of employment provides an opportunity for a look back to reflect on whether you are owed back-pay for overtime that you did not receive during your employment. Most workers are entitled to overtime pay at one and a half times their regular hourly rate for hours worked over 40. Often times, however, salaried employees are misclassified as “exempt” from overtime and cheated out of overtime pay.
There is a common misconception that if a worker is in a “white collar” position or is paid on a salary, overtime pay is not required under the law. That is not the case, and moreover, job titles that include the word “manager” do not necessarily make positions ineligible for overtime. Some commonly misclassified positions that are denied overtime pay include assistant managers, customer service representatives, recruiters, staffing agents, sales representatives, and certain IT workers and administrative employees. It also bears noting that each state has its own wage theft laws that have special overtime requirements. For example, in New York City, large employers are required to pay overtime to any employee who does not receive a minimum salary of $1,125 per week, or $58,500 per year.
As the COVID-19 crisis continues to take its toll on employment, employees who are terminated need to protect their financial health. Making sure that you are not a victim of discrimination or wage theft, and that your employer has complied with WARN requirements, is an important part of the check-up for laid off workers.