When the COVID-19 pandemic swept over the U.S. in March, federal and state governments intervened with emergency measures to shore up company balance sheets and provide temporary benefits to employees being laid off and furloughed. Now, as businesses contemplate reopening, some of those workers are being called back to their jobs. But not all of them will be so lucky.
As was the case in the rush to temporarily layoff workers, employers have some discretion in which ones to take back unless collective bargaining agreements or written company policies are at play. That puts many workers in limbo, with limited options for legal recourse if their boss doesn’t call them back.
In cases where neither collective bargaining agreements nor written policies exist, employees might look for any verbal or written communications made during the winding down of operations, according to Houston-based labor and employment lawyer Richard D. Alaniz: “Were any promises or commitments made in the layoff notice, memos, letters or e-mails about the employees’ jobs when economic circumstances change? Did supervisors or managers make promises of recall to employees?”
If the answer to any of these questions is yes, “such representations may have created rights or obligations where none may have existed previously,” Alaniz said.
Keep in mind that federal and state anti-discrimination laws continue to apply during these unprecedented times.
“Since the majority of today’s workforce falls within a protected category [including age, race, gender, national origin, or disability], there will be some situations where an employee within one or more of the various protected categories will be passed over for recall or not recalled due to job elimination,” Alaniz said.
In those cases, workers might look to the protective provisions of Title VII of the Civil Rights Act of 1964 and similar Washington state human rights laws.
Washington Gov. Jay Inslee signed a proclamation in mid-April requiring employers to accommodate “high-risk” workers who are over 65, have severe obesity, heart disease or other conditions vulnerable to COVID-19. While the proclamation offers much-needed protections to these workers, it doesn’t guarantee they will be called back to work.
Emery Reddy provides L&I, workers’ comp and employment law litigation advice and consultation. Our team of attorneys helps workers. Call us to find out your legal options.