Courts begin to tackle remote employee lawsuits

Out of sight, out of mind is a poor strategy for managing employees who work remotely. Yes, they’re model employees, which is why you’ve agreed to let them continue to work remotely in the first place. However, that doesn’t mean that hands-off is a good option either. Remember, federal employment laws apply to them and maybe some state laws, too. Forgetting is almost always a mistake.

WARNing

The Worker Adjustment and Retraining Act requires employers with at least 100 full-time employees to provide 60 days’ notice to employees when mass layoffs will be conducted at a single site of employment.

If employees work remotely, is there a single site of employment? This is the key question a federal trial court identified earlier this year when it certified a class-action lawsuit brought by remote workers who were laid off. The employees alleged they weren’t provided with the requisite WARN notice.

These employees worked from home or other locations around the country, such as coffee shops, and were supervised from a field office in Virginia. In their lawsuit seeking class-action status, they argued the Virginia office was the single site of employment, not their home offices, because they received their assignments from this office.

The court certified the employees’ class-action lawsuit.

Court: The elements of employees’ WARN Act claim can be resolved largely on a class-wide basis. The two primary issues are whether the employer’s Virginia office constitutes a single site of employment and whether the employer failed to provide notice under the WARN Act. Granting class certification will still allow the parties to dispute whether employees can meet the single site of employment requirement, the court concluded.

While this was enough to certify the class, the employer may contest the single site of employment issue in a motion for summary judgment down the line.

The takeaway. The WARN Act doesn’t define the phrase “single site of employment,” but regulations do. A single site of employment for workers whose primary duties require travel from point to point, who are “outstationed,” or whose primary duties involve work outside any of the employer’s regular employment sites is one of the following:

• The site to which they are assigned as their home base.
• The site from which their work is assigned.
• The site to which they report.

So when layoffs are contemplated, don’t forget your remote employees.

The case is Piron v. General Dynamics Information Technology, Inc.

New York, New York

New York and New Jersey are forever at odds, even fighting over who owns the Statue of Liberty (technically New Jersey owns more).

Defending its territorial integrity, a federal trial court in Manhattan ruled an employee who worked remotely in New Jersey couldn’t sue her New York employer in New York for disabilities discrimination under New York State and New York City civil rights laws.

This employee was hired during the pandemic and worked remotely in New Jersey for a New York employer. She was told she would return to the New York City office at some time. She never set foot in the city, however. She was fired after requesting and receiving an accommodation on account of her disability. At her termination, she was told she was unable to perform the essential functions of her job.

She sued under state and city civil rights laws, which are generally considered to be more protective than the Americans with Disabilities Act. A federal trial court dismissed her case.

Court: The state and local laws don’t restrict non-residents from suing, but employees must allege the discriminatory conduct had an impact in New York City. Here, the court said, the impact was in New Jersey, even though the discrimination originated in the city.

As a fallback, the employee argued the pandemic upended the traditional work-from-the-office assumption. The employer noted neither the state nor the city amended their laws on account of the pandemic. The court didn’t buy it, either.

Court: Even in light of the pandemic, an employee asserting civil rights claims must still show the discrimination’s impact was felt in the city and the state. An allegedly unlawful decision terminating her employment occurring in New York is insufficient to plead impact in New York, the court concluded.

What you might find useful is the employer’s response to pandemic-made-everything-different argument. However, this case could have turned out differently if the employee had worked in the New York office.

The case is Shiber v. Centerview Partners LLC.