Employment law may be the practice area most affected by Covid-19. Below is a frank conversation between Steve Kardell, name partner in Kardell Law Group in Dallas, who focuses on the plaintiff's side of Covid-19 employment law and, on the management side, Harry Jones, a shareholder in the Dallas office of Littler Mendelson who is a designated Covid-19 expert for the firm.

Steve Kardell: As a result of being on the other side of many disputes with Littler, I am aware of their multi-functional knowledge base, for both client counseling and litigation. Covid-19 has obviously upended all facets of employment law. Harry, you are helping spearhead Littler's Covid-19 practice, I want to get your perspective on this monumental change. Have you ever seen anything like this in your lifetime?

Harry Jones: Well, it was a bit before my life began, but the closest examples would be the civil rights laws passed in the 60's (Equal Pay Act of 1963, Civil Rights Act of 1964, Age Discrimination 1967), along with some other laws that followed when I was alive (Pregnancy Discrimination Act 1978, Americans with Disabilities Act 1990), but these were a trickle compared to the current tsunami, and they were designed to "make the world a better place," whereas this raft of laws is about surviving a confluence of events.

Steve: Drinking from a fire hydrant may not fully describe the situation. Tsunami, standing under a waterfall?

Harry: Yes, and the complicating factor is that the laws are flowing from so many different sources, often in disharmony, to be clarified later.

What to call it?

Steve: Being lawyers, we want to be precise, so what is the precise legal name for the virus? Is it coronavirus, novel coronavirus, just Covid, COVID-19 or the "Chinese Virus"?

Harry: Notwithstanding Western populist efforts to start calling it the Chinese virus, a la the Spanish Flu, which was not from Spain, the official name was established in September by the World Health Organization: "COVID-19."  But be prepared for this nickname debate to feature in some of our Title VII cases for years to come.

Too political?

Steve: It seems like there's too much political partisanship influencing this lawmaking process. Is this just my imagination?

Harry: Well, I get nervous when any one idea gets too much unity behind it, because sometimes those laws passed in haste without an eye to unintended consequences can haunt us for decades.  Also, let's not be nostalgic for good old days that never existed.  Passing employment lawmaking, from the very beginning, has always divided Democrats and Republicans.

Steve: Right, with the former being interested in expanding employee rights and the latter being interested in limiting that expansion…

Harry: I guess that's a fair statement, but more job creation is certainly good for employees, too.

Steve: …with the goal being employee rights similar to those enjoyed by Medieval serfs.

Harry: Serfs didn't have 401ks, and they didn't file class actions for overtime.

Covid-19 Laws Being Enacted at Warp Speed

Harry:  Most preemption disputes involving ordinances are protracted. Covid-19 cases, however, have been resolved at warp speed. Example: in Texas, hair salons are Ground Zero for pitched battles on Covid-19 re-openings; the Governor unexpectedly amended a local ordinance ex post facto to nullify a state District Judge's contempt order for the owner's premature opening.

Return to Work Situations as Street Theater

Harry: The salon owner provoked the situation by tearing up the judge's order in front of a crowd, plus news cameras, outside of her salon.

Steve: Taking a page from Nancy Pelosi's playbook, i.e., tearing up Donald Trump's State of the Union speech.

Harry: We are living in a reality-TV era.

Covid-19 as a "Political Football"

Steve: Not content to overlook any opportunity for mischief, President Trump demanded (on Twitter) that the District Judge be voted out of office at the earliest possible opportunity.

Harry: It is interesting how states' rights people become Big DC and federalists seem fine treading oppositely, depending on who is in power.

No "Threshold" Limitations

Steve: Our topic here is "How do Covid-19 employment laws differ than most other legislation?

Harry: Mainly, by scope. When explaining a new law to clients, one of the first items is "threshold," meaning, how many employees—15, 50–are required before the law applies to the client?

Steve: If Covid-19 laws don't focus on the number of employees, does this portend Covid-19 law enforcement on lemonade stands? Will the smallest Mom & Pop fruit stand have to designate Junior or "Sister" as a Covid-19 compliance officer?

Harry: To some extent, a qualified maybe. Apparently Covid-19 laws apply to hair salons with just one customer station.

Steve: I saw a law firm advisory the other day warning employers to get ready for "a deluge of Covid-19-related whistleblower cases." Vincent Vega would probably say "that's a bold statement." Do you agree?

Harry: Every Covid-19 alert seems to use water as a metaphor: tsunami, waterfall, fire hydrant, flood, now "deluge." My best bet is that it will be a two- to three- year tidal wave that will eventually recede. But for those few years, the sheer numbers of unemployed (the initial group who consult lawyers to survey their rights) will drive a bubble.

New Duties (Management Employment Lawyers)

Steve: Given the number of federal guidance, various guidelines and new legislation, is it fair to say that labor lawyers have been tapped with a whole set of new expectations and responsibilities?

Harry: Yes. Employment lawyers are not often the central characters in "bet the business" litigation or risk.  Perhaps a class action defense in California puts us in those boardroom conversations, or the occasional trade secret theft, or a CEO scandal.  But navigating Covid-19 has ushered lowly labor lawyers right into the executive suite, on a regular basis.

First, we have to understand if our clients are even permitted to RTO or RTW, and to what degree.  This involves decoding a tangle of new law, often contradictory.  Questions on preemption proliferate, e.g., the feds say test your employees, it's not bias against disability, and the county says "amen."  But the state says no way; it's not allowed.

Second, we need to have an OSHA-type brain, to inspect and render safe.  Do we use a hazard hunt philosophy or a stop-work regime? We find ourselves renegotiating cleaning vendor contracts, for example. We are talking to landlords for our clients, as we define guidelines and stockpile sanitizer, wipes, gloves, and masks. We answer questions like what distancing policies and PPE will be required? Will employees return in phases?  Will we stagger shifts, alternate teams, continue telework, and define critical work?

Will this eventually be handled by in-house counsel?

Steve: That's a lot on your plate. What type of duties here do you think might eventually be brought in house?

Harry: In-house counsel may staff up to designate an attorney with a focus on EH&S; expanding far beyond the typical WC focus to minimize Covid-19 risks.

Steve: Conversely, which duties would probably be beyond the capability of even the largest Fortune 500 companies and, thus, likely to remain core responsibilities for outside counsel?

Harry: Maintaining full 50-state or multi-state compliance, let alone guiding international workforces, is the province of global E&L boutiques.  Dabbling is not an option, given that sub-specialties (workplace privacy, global unions) are implicated. For example, associates with undergraduate degrees in design are making physical workspace modifications, closing those new open floor plans, adding partitions, writing about doorknobs, and drawing up signs about face coverings.

Steve: Are firms like yours hiring non-lawyers with specialized medical training in order to meet certain client needs and address technical issues on specific areas?

Harry: Yes, particularly from research institutes and universities with specialized curriculums.

Steve: I'm sure that one big selling point that firms with a deep bench like yours have is that in OSHA investigations, for example, specialized technical knowledge is invaluable.

Harry: Yes, we methodically approach reportable/recordable and hazard scenarios before they occur, with our experts in tow, to give clients their best shot at clean bills of health with OSHA/MSHA.

Steve: Covid-19 has shown that many states have their own specific whistleblower laws, all with varying elements. Can you describe some defensive strategies or tactics that would be universal notwithstanding the particular state where the particular whistleblower law in question has been enacted?

Harry: Just as the plaintiffs' bar has deepened its sophistication in "pre-taliation" tactics (creating conditions where management is more likely to take adverse action, retroactively seen as retaliatory), our clients have had to deepen training and protocol to preclude the snap firing or regrettable juxtaposition of events.

Plaintiff Lawyers

Harry: I saw a recent article titled "Trial Lawyer Greed in Time of Need: The Covid-19 Tort Fest and How to Curb It."

Steve: Hmm. That's a low blow.  However, anybody who listens to audio versions of John Grisham books will recognize the "hungry law-yuhs" (Deep South pronunciation). One thing that might keep these hungry lawyers on a starvation diet would be that many, if not most Covid-19 laws, don't contain these magic words: "private cause of action."

Harry: Yes. Example: OSHA Section 11(c), which prohibits retaliation against employees who make a reasonable, good faith complaint regarding a violation of its health and safety provisions. Unfortunately, for the Plaintiff's bar, there's no private right of action.  On top of that, OSHA hasn't really enforced this provision.  As of May 28, 2020, OSHA had received over 4,500 Covid-19-related complaints, but has issued just one citation, which was issued to a Georgia nursing home for failing to report that an employee had been hospitalized after contracting Covid-19 at work.

Steve: Another challenge for plaintiffs' attorneys is the fact that it appears that a lot of conservative state legislatures are engaged in a Sputnik-type race to be the first to enact pro-business, lawsuit-protection legislation.

Harry: Influential business groups are lobbying Congress hard to include in the next bailout bill a federal preemption law that would also be pro-business and anti-lawsuit.

Steve: To add insult to injury, an article recently came out describing a brand-new cross to bear for the Plaintiff's bar: employee Covid-19-client counselling, without any potential for decent fees.

Harry: I read that. It indicated that plaintiffs' lawyers were shifting their focus from litigation to client counseling, often on a pro bono basis. Good for them. We need more inspirational stories like that.

Steve Kardell has practiced employment law in Dallas for over 35 years, first on the management side and thereafter representing executives, employees and whistleblowers in significant SOX cases, SEC tip line cases, False Claims cases, and significant local whistleblower cases, such as the massive Dallas County Schools investigation. He has been quoted on whistleblower and executive termination cases in Forbes, Business Week, The Wall Street Journal, The Washington Post, The New York Times and is a frequent contributor to Corporate Counsel and Texas Lawyer. For almost 30 years, Harry Jones has advised and defended employers, including in dozens of jury trials. Harry has led more than 90 high-profile investigations on behalf of school districts, cities, colleges and private institutions. He has a specialty in dealing with complex c-suite misconduct issues. Harry has a national and international focus in his practice; he guides general counsel and HR departments through 50-state and complex cross-border issues, particularly in Europe, Africa and Latin America. Assistance by SMU summer law clerks Michael Romberg and Emerson Park is hereby gratefully acknowledged.