August 15, 2022

When Return-to-Work Policies Return to Haunt!

Nine employees filed a lawsuit against their employer(s) alleging the employer used the COVID pandemic as a “mask” for discrimination. As employees were called to return to work after many employees were sent home during the pandemic, there nine older workers (age 49 to 80) were not. They claim they were “ghosted” by never being told they were fired nor being called back to work. Today, they might call it quiet firing.

Why do they think it had anything to do with their age? Younger workers were called to RTW.  Two managers reportedly said in a meeting that they had gotten rid of some “dead weight.”

But wait, that’s not all. The lawsuit also alleges disability discrimination, wrongful termination, intentional infliction of emotional distress, and more!

Why employer(s) in the first line above?  Yep, this is another claim involving potential joint employment, liability for more than one company that may exercise control over the same employee – or employees in this case.  There are  up to 16 joint employer defendants in this case!

Tips? if you read the August 16th article about DEI gone awry, this is going to sound familiar. Look at your demographic data. Watch for trends. If you see call-back patterns based on race, sex, or any other protected status, monitor them.  Understand what is driving that result. Consider other strategies that might minimize the impact. And consider doing so under the direction of your company’s legal counsel.