LaKisha Kinsey-Sallis, partner with Fisher Phillips in Tampa, Florida.

As Florida businesses are navigating the "Safe. Smart. Step-by-Step Plan" to reopen Florida, the wave of COVID-19-related litigation is highlighting the fact that these lawsuits may also dredge up long-simmering employment conflicts unrelated to the pandemic. An example comes from a recent case filed in Florida, where an air-conditioner technician sued his former employer alleging that it failed to provide him personal protective equipment (PPE) during the pandemic. The lawsuit also claims that the technician was misclassified and not paid overtime. As a finishing touch, the lawsuit goes further and states that the technician was terminated in retaliation for his safety and overtime complaints. This case shows that, while you are focusing on resuming operations, you must also prepare to defend COVID-19-related litigation.

The Allegations: 'Macke v. HT AirSystems of Florida'

According to the May 6 federal lawsuit, Robert Macke worked for HT AirSystems of Florida. Macke alleges he emailed management objecting to working in the field without being provided with PPE. He pointed out that the Occupational Safety and Health Administration's (OSHA's) PPE standards require using gloves, eye, face and respiratory protection when job hazards warrant them. Macke claims that these complaints to management were protected activity, but that three weeks later, he was terminated without reason.

Macke's lawsuit didn't end there. Macke claims that HT classified him as exempt and did not pay him overtime despite the fact that he regularly worked in excess of 50 hours weekly and performed a number of nonexempt duties. He also pleaded that he had no authority to hire, fire or evaluate HT employees, etc. Macke further claims that he repeatedly complained to HT about his belief that he had not been paid properly. According to Macke, his termination was motivated by these complaints as well as his safety complaints.

Macke brings claims under the Fair Labor Standards Act (FLSA) and Florida's Whistleblower Act seeking alleged unpaid overtime compensation, back pay, liquidated damages, attorney fees and other relief.

Understanding the Legal Claims: Key Takeaways

The biggest takeaway from Macke's lawsuit is that, even as we are flattening the curve of reported COVID-19 cases, litigation of general employment disputes are still commonplace. However, you should be on guard against the fact that COVID-19-infused allegations are likely to infect your otherwise run-of-the-mill employment claims.

Turning to Macke's FLSA claim for example, misclassification and overtime claims are neither novel nor a consequence of the pandemic. Indeed, plaintiffs lawyers have long relied on the FLSA to challenge pay practices. Under the FLSA, employees who work in excess of 40 hours a week must be paid overtime. The FLSA, however, provides a number of exemptions to the overtime rule. In misclassification lawsuits, the filing party typically asserts that an employer paid them a salary or incorrectly described their job duties to avoid its overtime obligations. Macke's claim is no different. It appears Macke is asserting that HT improperly took advantage of the FLSA's executive exemption. Whether Macke's claims are true remains to be seen, but his case demonstrates that now is a good time for employers to revisit classifications of exempt workers where appropriate.

Whistleblower claims are equally as common as wage-and-hour claims and also are not a pandemic byproduct. Florida's whistleblower statute provides that employers cannot take any retaliatory personnel action against an employee who engaged in certain protected activity including objecting to, or refusing to participate in an activity, policy or practice of the employer which is in violation of a law, rule or regulation. Yet Macke's case demonstrates that whistleblower claims are likely to take new shape as employers continue to navigate this new COVID-19-impacted environment. Surely, employees who face demotions, terminations and reductions in schedules or pay will assert that their reports about their employer's alleged failure to follow legal protocols with respect to safety measures in this COVID-19 climate were the cause of those personnel actions.

As alluded to above, Macke's claims at this point are nothing more than allegations. HT will have its chance to respond to and defend against these claims. HT's response will provide more insights in this area as a new body of cases continues to develop.

Shielding Yourself Against COVID-19 Claims

More employers may very well face a Macke-type lawsuit in the near future. To guard against that, here are a few best practices that you should implement now:

• Follow OSHA and CDC Guidelines. The best defense against claims related to the safety is to follow all guidelines of state and local health departments, OSHA, and the Centers for Disease Control and Prevention (CDC). This includes providing PPE, regularly cleaning and disinfecting workplaces, and appropriately distancing employees to limit exposure. You should train all employees on following these guidelines and train management-level employees on responding to safety concerns of employees.
• Timing and Documentation are Important. In this pandemic environment, it is evitable that employers will have to make personnel changes. It never looks good when those decisions are made at or around the same time an employee complains the employer allegedly violated a law. Retaliation and whistleblower claims are a hazard of such circumstances. Therefore, when making those decisions, consider the risks and benefits associated with it before acting. And, when proceeding with such personnel decisions, be sure that the appropriate documentation exists leading up to and through the date the action is taken that demonstrates that the personnel action is unrelated to any protected activity.
• Be Aware of the New Litigation Landscape. The novel nature of the COVID-19 pandemic is certain to change the litigation landscape. While employers are reversing employment decisions made in response to the coronavirus (e.g., recalling furloughed employees, changing pay practices), they must consider the implications of them and regularly consult with employment counsel along the way. The reality is that the unique nature of this pandemic is likely to develop a number of new fact patterns that you must be alert to in order to appropriately defend against them.

LaKisha Kinsey-Sallis is a partner at labor and employment law firm Fisher Phillips in Tampa. She litigates class and collective actions as well as single-plaintiff claims on behalf of private and public sector clients.