In the face of the COVID-19 shutdowns across America, a record 6.6 million Americans filed unemployment claims in the last week in March. In the following week, another 6.6 million Americans filed for unemployment benefits.
The unprecedented economic turmoil flowing from the efforts to flatten the curve and limit the spread of COVID-19, has inflicted great hardship across America. In the face of massive layoffs, employees may wonder if their layoff was actually for economic reasons or if it was in retaliation for filing a complaint with an administrative body. If an employee has made a complaint of discrimination with an administrative body prior to a mass layoff, claimed by their employer to have been precipitated by economic necessity, an employee can still make a claim that their termination was.
Retaliation claims generally require an employee to make a prima facie case that they have been retaliated against for participating in protected activity, such as filing a complaint with the Connecticut Commission on Human Rights and Opportunities and/or the Equal Employment Opportunities Commission and that their employer retaliated against them for such activity by, for instance, terminating them. It is then the employer’s burden to advance a legitimate reason for the termination. Layoffs due to the economic challenges presented by COVID-19 would appear to suffice as a legitimate business reason for layoffs particularly given the role of the government in implementing social distancing and the shutdown of non-essential businesses. The burden would then shift back to the employee to demonstrate that their termination was retaliatory and that COVID-19 was simply being used to deflect the true nature of the termination.
In the face of the mass layoffs occurring in response to COVID-19 shut downs and the tremendous economic downturn in the economy, it seems that it will be difficult if not impossible to prove that an employer retaliated against an individual employee by terminating them because they engaged in protected activity.
This does not mean that it is impossible to prevail on a retaliation claim in the face of the COVID-19 mass layoffs. It does mean that employees will need to be vigilant in preserving those claims. Among other things employees should take the following steps to protect a potential retaliation claim:
- Where still employed, make sure to discharge their duties to the very best of your abilities. In other words, don’t give the employer any reason to terminate you based on performance issues.
- Preserve records relevant to any potential claims you may have and your work performance.
- Consult with an attorney to see what other steps should be taken to preserve any potential claim that you may have.