Protecting Workers Rights Despite Unprecedented Challenges

COVID-19 Warns Us That We Cannot Return to “Normal”

By Katherine Zoeller

COVID-19 and Workers’ Rights Series

The COVID-19 and Workers’ Rights series will publish essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, look at the pandemic from the perspective of workers’ rights.

We are currently operating in a moment in history that has impacted every one of us in a large-scale way. Much of the normalcy of our lives as we know it has shifted and it is revealing painful truths about how we live and the problems that we as a nation have either ignored or felt too busy or too focused on our own lives to address. 

About 26 million people filed unemployment claims in the first five weeks of the pandemic, as the coronavirus outbreak caused many employers to halt operation or lay off workers. It is very unlikely that returning to “normal” will look the exact same as life before quarantine. These challenges will not leave our workplaces unscathed and it will be imperative that employment law rises to the occasion to meet these challenges and support workers.

As employment that is not considered an “essential” service has been either terminated or moved to an online setting, the benefits and drawbacks of participation in a virtual workforce are becoming clear. There are advantages to working remotely, including its cost effectiveness that comes with not having to pay for rent and utilities, flexibility in hours, and its ability to bring on more people because the organization is not bound by a physical space. 

The disadvantage to working online include a decrease in cohesiveness when dealing with crises or issues due to differing schedules, difficulty in fostering camaraderie as a virtual workspace tends to make it challenging to establish strong bonds, security issues, and an increase in the ability for employees to be manipulated or face online harassment. Employment law will have to rise to meet these challenges just as workplaces are learning to adapt and create safe and productive virtual workspaces.

Discrimination is an issue area of employment law that will most likely see an increase due to the fear and uncertainty that the coronavirus pandemic has stimulated among people. Abuse towards Asians and Asian Americans has been perpetuated by the coronavirus pandemic since it started in parts of China. In a survey conducted by researchers at the University of Southern California, 14% of Asians surveyed stated that they experienced some kind of discrimination or unfair treatment due to people thinking they might have the coronavirus which is more than any other racial or ethnic group surveyed. 

These discriminatory feelings are fostered in workplaces where this kind of behavior goes unrecognized or is perhaps even encouraged consciously or subconsciously. When people return to their workplaces, they will most likely face unease and anxiety and those who were victimized before are likely to continue to be vulnerable to this kind of treatment.

Other areas that may experience exacerbation or some significant increase during or after the pandemic include wrongful termination and issues relating to salary and benefits. Wrongful termination may be for reasons unrelated to quality of work or cost that would normally be seen as discriminatory or in some other way wrongful and masked as cost productive response to coronavirus pandemic. 

The Families First Coronavirus Response Act is the federal government’s response to the effects that the pandemic will have on small businesses. This act grants paid sick leave and expanded medical and family leave to certain public employers and private employers with less than 500 employees. Employment lawyers will play a crucial role in upholding the provisions and rights provided in this act and making sure that employers are in compliance.

Despite the hardships that the coronavirus has caused and the unforeseen aftermath that will most certainly follow, the economy will eventually recover and people will return to work. This change presents employment law with a new set of challenges and a message that there will likely be other catalysts for great change that will require adaptation and new ways of operating.

It is vital that employment law is there to protect workers, especially those most at risk for having their rights violated when these changes occur. As the workforce reemerges from this pandemic and the international community attempts to rebuild, employment lawyers will be an essential part of this response. Protecting workers and ensuring safe working environments will help ease the shock that these changes will cause and the experience will prepare employment lawyers for future issues that may arise.

Reflections from Charles Joseph

Katherine Zoeller captures many of the challenges posed by the coronavirus pandemic, including the potential increase in workplace discrimination and wrongful termination. In the weeks since Zoeller wrote her insightful essay, the situation continues to worsen. Workers afraid for their health are being pushed back into the workplace just as federal unemployment benefits expire and coronavirus cases skyrocket to levels unseen in the spring. These challenges only increase the urgency to expand COVID-19 protections for workers.

Katherine Zoeller earned a bachelor’s degree in law and public policy from the School of Public and Environmental Affairs at Indiana University. While earning her degree, she also studied democratic institutions in Athens and learned about European political systems in Madrid. In the fall, Zoeller will join the Indiana University Robert H. McKinney School of Law. Contact Zoeller on LinkedIn.

Charles Joseph has over two decades of experience as an NYC employment lawyer. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $140 million for clients.