Class and collective actions by workers will "absolutely" happen in the wake of COVID-19 crisis, according to a legal scholar at the University of Missouri.
But it is not clear where those actions will come from and how companies, and insurance firms, will react, said Sam Halabi, director of the Center for Intellectual Property and Entrepreneurship at the School of Law
Halabi, who has particular knowledge of health and safety in the work place, predicts that working conditions may form the core of collective actions by employees, filed not just against private companies but possible federal and state agencies.
Other areas of potential collective action are whether adequate notification was provided in lay offs, wage and hour violations, and other claims under the Family Medical Leave Act. No class or collective actions are believed to have been filed yet in Missouri.
Plaintiff lawyers nationally are predicting a large number to be filed, with one telling Law.com: "We’re going to see a huge explosion of litigation related to this,”
"I feel certain they are going to be ones that are meritorious, but they will will raise really novel issues relating to legal recovery," Halabi told the St. Louis Record.
In relation to workplace safety, the claim may be that a company did not provide proper protective equipment, but these types of arguments will overlap with whether they would be dealt with within workers' compensation system.
Missouri Gov. Mike Parson has signed an order stating that all emergency workers, police, firefighters and paramedics, will be covered under workers' compensation if they contract the virus. It will be presumed that they contracted coronavirus while on the job, the governor said.
Halabi suggested that health workers may also have a valid claim under workers' compensation but outside that sector it will be much more difficult to determine.
The law professor cited as examples of supermarket workers not being allowed to wear or gloves, and pointed to Amazon, and the operation of its warehouses, which is facing scrutiny.
Significant changes are likely to follow the pandemic, with insurance companies and employers trying to work out how they will react to legal actions, collective or otherwise, taken by employers.
But Matt Noce, a defense lawyer with Hepler Bloom in St. Louis, is not convinced that successful actions will be possible.
"My personal belief is that I cannot imagine how someone could prove causation," Noce told the St. Louis Record. "I believe the possibility (or impossibility) of proving where one actually contracted the virus becomes too speculative."
"Further, the causation analysis for each claim would require individualized “mini hearings” that would defeat the purpose of a class action in my opinion.
"I know there was a recent lawsuit filed against Walmart by an employee in Chicago. I suspect we may see an uptick in work comp claims of employees who contracted the virus, especially in states where the legislature or governors have enacted laws/orders creating a rebuttable presumptions that an employee (which in some cases have been limited to healthcare workers) contracted the virus at work in the event of a positive diagnosis.
"But I’m not sure the issue is appropriate in the class action context."
In an article published in the Law.com, the author suggest that allegations could be made against employers for denying, discriminationd during layoffs, or putting workers in unsafe conditions.
The publication noted that government employees, those in a hand bell factory and a hair salon have filed class actions.
“We’re going to see a huge explosion of litigation related to this,” Karl Lindegren, co-chairman of the California Litigation Practice Group at Fisher & Phillips, told the publication. “You’ve got some very wealthy, well-established collective action lawyers there who won’t be shy about taking this on.
“We’ve got an army of lawyers burning the midnight oil to stay current on things, and we’re talking to clients every few seconds."
COVID-19 class actions have been filed in various parts of the countries, but focused on consumers seeking refunds or alleged price gouging of high-demand products
While the Missouri Trial Lawyers Association would not be drawn on whether it expects an increase in class or collective actions, it did note that the Attorney General Eric Schmitt is "drilling down on price gouging" and potential violations of the Missouri Merchandising Practices Act (MMPA).
Schmitt has issued eight civil investigative demands against third-party Amazon sellers, a collaboration with the giant online retailer, and sent cease and desist letters to companies selling face masks at alleged.