It’s a daunting task to keep current with the constantly evolving, and sometimes conflicting, health agency guidance on workplace safety amid COVID-19. A good example is the CDC guidance on what to do when workers come in close contact with an individual who has a confirmed or suspected case of the virus. Initially, the CDC recommended that potentially exposed workers should self-quarantine for 14 days. The CDC then recommended that potentially exposed workers who remained asymptomatic could remain at work so long as additional precautions were taken, like temperature checks and wearing face coverings. The CDC is now distinguishing between critical infrastructure workers and “other employees.” It recommends that other workers who have been potentially exposed should self-isolate for 14 days, and cautions that home isolation may still be the best option even for essential workers.

The CDC’s comprehensive FAQs for business is at https://www.cdc.gov/coronavirus/2019-ncov/community/general-business-faq.html. To help you stay on top of this evolving maze of CDC guidance, below is the current CDC guidance on when employees who tested positive for COVID-19 can return to work, and what to do when an employee has been potentially exposed to COVID-19.

RETURNING TO WORK

Employees with COVID-19 should not return to work until they meet the CDC’s criteria to discontinue home isolation, and have consulted with a healthcare provider and state or local health department. This criteria is dependent on whether the employee has been tested or not, and has symptoms.

Employees with COVID-19 who have stayed home can return to work under the following conditions:

If they have not had a test to determine if they are still contagious, they can return to work after these three things have happened:

  1. They have had no fever for at least 72 hours (without the use of medicine that reduces fevers)
    AND
  2. other symptoms have improved (for example, symptoms of cough or shortness of breath have improved)
    AND
  3. at least 10 days have passed since their symptoms first appeared

If they have had a test to determine if they are still contagious, they can return to work after these three things have happened:

  1. They no longer have a fever (without the use of medicine that reduces fevers)
    AND
  2. other symptoms have improved (for example, symptoms of cough or shortness of breath have improved)
    AND
  3. they have received two negative tests in a row, at least 24 hours apart. Their doctor will follow CDC guidelines.

Employees who DID NOT have COVID-19 symptoms, but tested positive and have stayed home can return to work under the following conditions:

If they have not had a test to determine if they are still contagious, they can return to work after these two things have happened:

  1. At least 10 days have passed since the date of their first positive test
    AND
  2. they continue to have no symptoms (no cough or shortness of breath) since the test.

If they have had a test to determine if they are still contagious, they can return to work after:

  1. They have received two negative tests in a row, at least 24 hours apart. Their doctor will follow CDC guidelines.
  2. If they develop symptoms, follow guidance above for people with COVID19 symptoms.

ACTION ITEMS FOR KEY WORKERS POTENTIALLY EXPOSED

Critical infrastructure workers who had been in close proximity to confirmed or suspected individuals with COVID-19 may be permitted to remain at work provided they remain symptom-free and follow the below additional precautions. A potential exposure means being a household contact or having close contact within 6 feet of an individual with confirmed or suspected COVID-19. The timeframe for having contact with an individual includes the period of time of 48 hours before the individual became symptomatic.

  • Pre-Screen: Employers should measure the employee’s temperature (ideally before entering the worksite) and assess symptoms prior to them starting work.
  • Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.
  • Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure.
  • Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
  • Disinfect and Clean workspaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.

If the employee becomes sick during the day, they should be sent home immediately. Surfaces in their workspace should be cleaned and disinfected. Information on persons who had contact with the ill employee during the time the employee had symptoms and 2 days prior to symptoms should be compiled. Others at the worksite with close contact within 6 feet of the employee during this time would be considered exposed.

Even this guidance comes with a recent caveat by the CDC, it “should not be misinterpreted as always being the first or most appropriate option to pursue in managing critical work tasks” and “home isolation may still be the most viable option for exposed workers.”

NON-CRITICAL EMPLOYEES WHO MAY HAVE BEEN EXPOSED

Non-critical infrastructure employees who have been potentially exposed and have symptoms of COVID-19 should self-isolate and follow the CDC recommended steps on what to do if you are sick.

Non-critical infrastructure employees who have been potentially exposed and do not have symptoms should remain at home or in a comparable setting, practice social distancing and self-monitor for symptoms for 14 days.

According to the CDC, employees may have been exposed if they are a “close contact” of someone who infected, which is defined as being within approximately 6 feet of a person with COVID-19 for a prolonged period of time (approximately 10 minutes or more).

As more businesses are reopening, the takeaway from this fluid and ever-changing guidance: frequently monitor for updates on what to do with confirmed and suspected cases, and implement new guidance whenever your operations permit. The CDC advises that most workplaces should follow the Public Health Recommendations for Community-Related Exposure, and critical infrastructure workplaces should follow the guidance for Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19.

A common question posed to me this past week was what types of lawsuits should employers be concerned about once the economy begins to reopen.  I figured that the California economy is slowly reopening, so I should start writing my Friday’s Five lists again – so here are the top five areas of concern I see for California employers post-coronavirus:

1. Leave issues

There are a patchwork of paid leave laws that California employers must be very careful in navigating.  For example, here are a few federal, state and local leave laws that could apply to an employer in Los Angeles:

2. Retaliation claims

Labor Code section 1102.5 protects employees against retaliation for disclosing information, or because an employer believes an employee has disclosed information, to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has the authority to investigate, discover, or correct a violation where an employee reasonably believes that the information discloses a violation of a state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. The key item to understand here is that the employee only had to have a reasonable belief that the disclosure discloses a violation of federal, state or local law or regulation.

3. OSHA/Cal-OSHA/EEOC/DFEH worksite investigations

Employers must comply with requirements to provide safe work environments:

    • OSHA: https://www.osha.gov/SLTC/covid-19/controlprevention.html
    • Cal-OSHA guidance on requirements to protect workers from coronavirus: https://www.dir.ca.gov/dosh/coronavirus/Health-Care-General-Industry.html

OSHA provided revised guidelines on May 19, 2020 setting forth the following requirements for recording of COVID-19 workplace cases:

OSHA is revising its previous enforcement policy for recording cases of coronavirus. Under OSHA’s recordkeeping requirements, coronavirus is a recordable illness, and employers are responsible for recording cases of the coronavirus, if the case:

Also, remember to have your Injury and Illness Prevention Program (IIPP) in place.

4. Wage and hour issues

The following wage and hour issues could be common types of claims following the recovery from the coronavirus pandemic:

5. Disability discrimination/reasonable accommodations

Fair Employment and Housing Act (FEHA) provides it is unlawful to discriminate against an employee on the basis of “physical disability.” (Gov. Code, § 12940, subd. (a).)  In addition to making it illegal to discriminate on the basis of disability, the FEHA makes it unlawful “to fail to make reasonable accommodation for the known physical . . . disability of an . . . employee.” (§ 12940, subd. (m)(1).)  Finally, the FEHA prohibits an employer from harassing an employee “because of . . . physical disability.” (§ 12940, subd. (j)(1).)  Employers must consider reasonable accommodations for high risk employees, such as for employee with underlying impairments, 65 years old or older, possibly for pregnancy-related impairments.  A reasonable accommodation is not require if employee is simply afraid to return to work, is on unemployment, or who is caring for someone else who is at high risk (but be careful on this issues, as it could trigger other leave laws, such as California’s paid sick leave laws or the FFCRA).

UPDATE:  As of May 21, 2020, the State has approved San Diego County’s expanded reopening variance. Now that the County has been given the green light, restaurants and retails will begin to reopen for in-person dining and services.  Businesses should closely and thoroughly review the County’s guidelines.  The County’s attestation documents (including its Safe Reopening Plan, Restaurant Operating Protocol, and Industry Guidance for Retail) can be found here.

 

Earlier this week, the San Diego County supervisors approved the submission of the County’s regional variance to State officials.  If and when approved, the variance would allow the County to move ahead and more rapidly reopen businesses within the County.  Likewise, it would also allow in-person customers at restaurants and retail businesses.  As part of its “safer reopening,” and in anticipation of the variance being granted, San Diego has already issued specific guidelines and guidance for restaurants, including a Safe Onsite Dining Plan for Restaurants and a COVID-19 Restaurant Operating Protocol.

Here is what restaurants need to know.

COVID-19 Safe Onsite Dining Plan for Restaurants & Restaurant Operating Protocol

San Diego County had previously issued a Safe Reopening Plan for retail businesses.  Unsurprisingly, the COVID-19 Safe Onsite Dining Plan for Restaurants (the “Dining Plan”) and Restaurant Operating Protocol are fairly similar, but contain restaurant-specific guidelines.

The Dining Plan and Restaurant Operating Protocol include five (5) major measures for dine-in restaurants: employee health, social distancing, education for the dining public, measures to increase sanitation and disinfection, and recommended additional measures.  Except for the last one, all measures are mandatory, so restaurants should thoroughly review both the Dining Plan and the Restaurant Operating Protocol.

Some of the key items under each measure are discussed below.

Employee Health

As part of safeguarding employee health, businesses must conduct thermal or temperature scans of employees on a daily basis, as well as conduct health screening of employee prior to the beginning of each shift.

With respect to face coverings, all employees must wear them if they interact with the public and when social distancing from co-workers is not feasible.

Businesses must provide a copy of their Restaurant Operating Protocols and ensure that all employees have read and understand the San Diego County’s COVID-19 Fact Sheet.

Businesses must require employees to avoid handshakes or similar physical greetings.

Social Distancing

Restaurants should be fairly familiar with social distancing measures by now.  However, the Dining Plan provides further and more specific guidelines.

All tables must be 6-feet apart, and if they cannot be moved (for example, if they are bolted), then restaurants must install a barrier or partition to separate them.

Now, restaurants will also have to be mindful of how many people can sit at a single table.  Indeed, single-table usage can be limited to household units.  While the Dining Plan also provides that patrons who have asked to be seated together may do so at a single table, it is unclear as to whether there is a maximum number of people allowed.  For example, the Dining Plan does not address what to do when dealing with a party of 10 or more people.

Education for the Dining Public

Is this a “new” set of measures?  Not quite.

This measure requires restaurants to continue to post signs reminding customers to maintain social distancing, wash their hands, and stay home if exhibiting COVID-19 symptoms.  The Restaurant Operating Protocol must be also be posted in a visible location for customers.

But note, when not seated at their table, customers must wear face coverings.

Sanitation and Disinfection

In short, the Dining Plan prohibits:

  • The use of food items that can be touched by multiple customers or shared between tables (e.g., condiment bottles, saltshakers, etc.).
  • Self-service buffets, salad bars, or soda machines.
  • Tableside food preparation.

If single-service or single-use items (such as menus or disposable utensils) are not or cannot be provided, businesses must ensure that they are disinfected (in the case of menus), or washed, rinsed and sanitized (in the case of silverware).

Restaurants must also designate a “team member” per shift to oversee or enforce any additional sanitation and disinfection procedures.

Recommended Additional Measures (Non-Mandatory)

The Dining Plan also recommends optional measures that restaurants should consider implementing.  These include:

  • Usage of non-person-to-person payment systems (e.g., touchless).
  • Implementing a reservation process in order to prevent gatherings and promote social distancing.
  • One Party, One Server: to the extent possible, only one employee should serve an individual party.
  • In addition to handwashing, use disposable gloves when conducting employee health screenings, handling items contaminated by body fluids, touching items used by customers or handling trash bags (Note: Based on this, it can be inferred that disposable gloves are not required).

Other County Guidance

San Diego County’s Department of Environmental Health, Food and Housing Division, had also previously issued COVID-19 Guidance for Food Facility Re-Openings.  This guidance was issued to prevent food safety risks.  The Guidance can be found here.

Again, even though the State has not granted the County’s variance, restaurants should be proactive, review the guidance, and ensure compliance with all new requirements.  This will ensure that businesses are ready to hit the ground running.  Happy dining!

Today, May 12, 2020, Governor Newsom announced guidelines for businesses, including restaurants, to continue to open under the “expanded” Phase 2 in California.

Early Stage 2 business that were permitted to reopen on May 8 included:

 

  • Curb-side Retail
  • Manufacturers
  • Logistics
  • Childcare for those outside of the essential workforce

 

Expanded Stage 2 businesses that will be permitted to reopen if the county that they operate in obtain a variance from the state that would permit businesses to reopen include:

 

  • Office-based businesses (telework remains strongly encouraged)
  • Select services: car washes, pet grooming, and landscape gardening
  • Destination retail, including shopping malls and swap meets
  • Dine-in restaurants (other amenities, like bars or gaming areas, are not permitted in Stage 2)
  • Outdoor museums, and open gallery spaces and other public spaces with modifications
  • Schools with modifications

 

As of today, only two counties, Butte County and El Dorado County, have obtained the variance to permit expanded Stage 2 businesses to reopen in those counties.

The state’s guidance for dine-in restaurants is here: https://covid19.ca.gov/pdf/guidance-dine-in-restaurants.pdf

The state’s general checklist for dine-in restaurants is here: https://covid19.ca.gov/pdf/checklist-dine-in-restaurants.pdf

 

Businesses getting ready to re-open need to consider yet another item on the re-opening checklist: an Injury, Illness and Prevention Plan (IIPP) to address COVID-19. Title 8 of the California Code of Regulations section 3203 requires every employer to develop a written IIPP that protects employees from workplace hazards. Most California workplaces now must consider COVID-19 to be a workplace hazard that employees are exposed to.

Fortunately, the California Department of Industrial Relations Division of Occupational Safety & Health (DOSH), or Cal/OSHA, provides guidance and easy to modify forms and checklists that can help employers create and develop an IIPP that addresses COVID-19:

Step-By-Step Guidance On How To Create Your Own Written IIPP Customized To Your Workplace:

https://www.dir.ca.gov/dosh/etools/09-031/how.htm

Sample IIPP Forms and Checklists:

https://www.dir.ca.gov/dosh/etools/09-031/tools.htm

Cal/OSHA’s Consultation eTools with Action Kits:

https://www.dir.ca.gov/dosh/etools/etools.htm

Cal/OSHA’s Guide to Developing Your Workplace Injury and Illness Prevention Program With Checklists For Self-Inspection, describes the employers’ responsibilities in establishing, implementing, maintaining, an IIP Program:

https://www.dir.ca.gov/dosh/dosh_publications/iipp.html

An IIPP has 8 required elements:

  1. Responsibility
  2. Compliance
  3. Communication
  4. Hazard Assessment
  5. Accident/Exposure Investigation
  6. Hazard Correction
  7. Training and Instruction
  8. Recordkeeping

An effective IIPP is not just a paper program. For your IIPP to be effective, Cal/OSHA identifies four items to put into practice in your workplace:

  • Fully involve all employees, supervisors, and management
  • Identify the specific workplace hazards employees are exposed to
  • Correct identified hazards in an appropriate and timely manner
  • Provide effective training

Your workplace assessment needs to identify the workplace hazards posed by COVID-19 and measures to prevent or reduce the spread of the virus based on your operations. Basic measures that all employers should asses and implement are: cleaning and disinfecting; good hand hygiene; when and what PPE is needed or appropriate; physical distancing; and training employees on COVID-19 infection prevention methods. Implementing your prevention measures could incorporate CDC, OSHA, state and local guidelines and orders. Good sources to incorporate into the written IIP Plan include:

Cal/OSHA Guidance on Requirements to Protect Workers from Coronavirus:

https://www.dir.ca.gov/dosh/coronavirus/Health-Care-General-Industry.html

Federal OSHA Guidance on Preparing Workplaces for COVID-19 publication

Identifies different Coronavirus-related risk categories for workers, including higher-risk industries, and provides specific guidance for workplace safety for those industries.

https://www.osha.gov/Publications/OSHA3990.pdf

Los Angeles County Social Distancing Protocol:

http://www.publichealth.lacounty.gov/media/Coronavirus/HOO_Safer_at_Home_Order_for_Control_of_COVID_04102020.pdf.

As with everything related to this pandemic, be vigilant in keeping up-to-date on evolving rules and guidance, and modify your IIPP, as needed. We will continue to provide updates on COVID-19 issues impacting the workplace.

In an interesting and surprising turn of events, the Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing federal anti-discrimination laws in the workplace, removed the Frequently Asked Questions section from its website. The FAQ provided guidance on accommodating workers with medical conditions, issues of harassment and retaliation, and a “Return to Work” due to the movement towards opening the economy post-pandemic.

The EEOC is currently revising its previous guidance to ensure greater clarity and to avoid any misinterpretation by employers and the public-at-large.  As such, employers should monitor and check the EEOC’s website constantly, as the updated guidance could be published rather soon.  As of now, the EEOC’s website still provides information and Q&A section with respect to these issues, which employers can review here.

The EEOC has also consolidated its COVID-19 resources under a single page, which can be accessed here. As employers continue to navigate these murky waters, it is imperative that they remain attentive to all local, state and federal developments in dealing with these issues.  The better informed businesses are, the better prepared they will be when they decide to re-open.

A frequent question asked at our webinars is what liability employers might face from claims that employees contracted COVID-19 at work. Governor Newsom provided clarity on that question today.

Newsom issued Executive Order N-62-20, creating a rebuttable presumption that an employee’s COVID-19-related illness arose out of the course of employment for workers’ compensation purposes if the employee tests positive or is diagnosed “within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.” The presumption does not apply if the employee worked from home.

To qualify, the employee must either (1) test positive for COVID-19 within 14 days after performing work; or (2) be diagnosed with COVID-19 by a licensed physician within 14 days after performing work and have that diagnosis confirmed by further testing within 30 days of the diagnosis. Additionally, the date of injury must occur between March 19, 2020, and July 5, 2020.

For current employees, the practical reality of this Executive Order is that any test-confirmed COVID-19 illness will be presumptively compensable by workers’ compensation.

The Executive Order provides that the presumption “is disputable and may be controverted by other evidence.” However, if a claim is not rejected within 30 days of filing, the presumption can only be rebutted by evidence discovered subsequent to the 30-day period.

Employees claiming COVID-19-related illness are eligible for all workers’ compensation benefits, including “full hospital, surgical, medical treatment, disability indemnity, and death benefits.” There is no waiting period for temporary disability benefits, but an employee entitled to COVID-19 paid sick leave must exhaust that paid leave first.

Governor Newsom’s messaging on reopening California has emphasized a need to created an “Expanded Workforce Safety Net.”  This new Executive Order is a significant step in that direction.

Today, May 5, 2020, San Diego County Board of Supervisors unanimously agreed to adopt a framework developed by the Responsible COVID-19 Economic Reopening Advisory Group on how businesses should approach reopening.  The framework is made available on the County’s website here. 

 

The plan offers guidelines for businesses on how to protect employees and customers.  The County states businesses can use the plan to prepare for when the state permits certain businesses to open.  The County did not provide a timeline for when businesses can reopen, but have deferred to the Governor’s plan.  The County’s website informs businesses to check back for more information on May 8, 2020.  The County recommended businesses permitted to reopen in Phase 2 should prepare the plan.  If permitted to reopen, businesses will be required to post the plan, but will not be required to submit it to the County.

Essential businesses operating throughout California must pay careful attention to local Orders requiring social distancing protocols (SDPs).  With many of the original Orders set to expire at the beginning of May, many counties are extending their original SDPs with additional requirements.  Below is a list of five counties we have been receiving routine questions about details of each SDP:

1. Los Angeles County:

2. Long Beach:

3. San Diego:

4. San Bernardino County:

“Businesses shall identify and implement required measures for social distancing and infection control in each of their facilities.  If the measures identified and implemented are not effective in maintaining proper social distancing and infection control, additional measures shall be identified and implemented or the facility shall be closed.”

  • Requires a posting for certain “licensed facilities.”

5. San Francisco Bay Area:

A California appellate opinion issued yesterday offers a fact pattern and jury verdict familiar to employment counsel: A longtime employee resists a proposed change pushed by his new boss, citing an anxiety disorder; the new boss finds the claimed anxiety a dubious excuse; the boss learns the employee has been moonlighting and potentially using company resources for this side venture; and the boss decides to terminate the employee for violating the company’s conflict of interest rules. The employee sues and wins.

The San Bernardino jury’s verdict was no doubt painful to T-Mobile: $320,042 in economic damages, $700,000 for noneconomic damages and emotional distress, and $4 million in punitive damages (equal to one day of net income for T-Mobile in 2016). T-Mobile was also ordered to pay $480,315.00 in attorney’s fees to plaintiff, in addition to incurring its own fees and costs. The appellate court reduced the punitive damages to only $1.53 million, but if you value a day of your business’s profits, it is worth taking a few minutes to learn from this cautionary tale.

Background Facts

(The following facts are taken from the appellate opinion. Because the employee won at trial, the appellate court was required to consider the evidence in a light most favorable to the employee.)

From 2007 to 2014, Stephen Colucci was a store manager at a T-Mobile retail store in Ontario, CA.  In February 2014, Brian Robson became the new district manager overseeing various stores, including Colucci’s.

Robson planned to transfer Colucci to a mall kiosk location, but Colucci claimed an anxiety disorder made him unable to work in a crowded mall.  Robson was highly skeptical of Colucci’s condition–“this is the most ridiculous thing I’ve ever heard”–but Colucci obtained a doctor’s letter and T-Mobile’s HR advised Robson that he could not transfer Colucci to the mall kiosk.

In July 2014, Colucci complained to Robson that an associate was spreading inflammatory rumors about Colucci. After agreeing to investigate, Robson did nothing, and told Colucci he should “quit complaining” and that he had been “nothing but problems.”

Around the same time, a part-time sales associate informed Robson that Colucci had an outside business, had used a T-Mobile fax machine for the outside business, and required the associate to answer calls for that outside business while on duty for T-Mobile. The catch? 1. The sales associate had recently been disciplined by Colucci and wanted a transfer. (At trial, the associate’s statements were “largely discredited.”) 2. Colucci’s prior boss knew about the outside work, other T-Mobile employees had side businesses, and T-Mobile’s policy allowed occasional personal use of T-Mobile equipment.

Robson started an investigation, enlisting loss prevention for support.  One day before Robson and loss prevention visited the store to interview him, Colucci called T-Mobile’s “integrity line” to complain that his complaint to Robson was unresolved and left his work environment tense. When Robson arrived to interview Colucci, Colucci was experiencing back pain aggravated by anxiety over the tense work environment.  Colucci complained to Robson and requested medical leave, which Robson granted.

Two hours after Colucci left, Robson recommended to HR that Colucci be terminated for cause due to the conflict of interest, bypassing T-Mobile’s progressive discipline policy. The loss prevention manager assisting Robson later told the loss prevention team that Colucci had been “turned into a customer” (i.e., fired) because of his complaints or the way he acted.

What can we learn from this?

1. Beware the retaliation trap.

Discrimination is a well-understood risk in the workplace.  Harassment, especially sexual harassment, has been well-publicized lately.  But retaliation is and remains an underrated risk for employers.

Not all jurors are inclined to attribute discriminatory motive to employer conduct, but virtually everyone understands and acknowledges that people hold and act upon grudges. Employers need to be particularly attuned to potential retaliation claims where, as here, a supervisor wants to discipline an employee who complained about the supervisor, or a supervisor or management has made disparaging comments about the target of proposed discipline. Employers need to be proactive and clear that retaliation will not be tolerated.

2. Take all disability accommodation requests seriously

Robson’s disbelief of Colucci’s anxiety disorder is not uncommon. Whether or not you believe such disability claims are abused by employees, employers need to recognize that courts and juries are increasingly holding employers accountable for discriminating against or failing to accommodate employees asserting mental disabilities. T-Mobile properly accommodated Colucci’s anxiety by blocking his transfer to the mall kiosk, but Robson’s incredulity went unaddressed with costly results.

3. Investigate timely and completely

When an employee lodges a complaint, do not let it languish. An investigation should commence in a timely manner. Ask yourself today who would handle such a complaint, so that you can assess whether that person would be able to conduct a timely investigation. If that person is you, but your daily task list is bursting at the seams, what is the likelihood you can drop everything on short notice to address a complaint?

A workplace investigation must also be competent, which means (among many other things) interviewing all relevant witnesses. Here, T-Mobile’s investigation of the potential conflict of interest failed to achieve an interview of the accused employee. (T-Mobile’s investigation of Colucci’s complaints never even got off the ground).

4. Terminations for policy violations are not bulletproof

I see it a lot. A legal complaint or settlement demand comes in, and the potential client is insistent that its frivolous because the complaining employee was fired for cause. (All of my actual clients are, like my son and my favorite dog, perfect in every way.) It is difficult to rationalize paying money to a former employee you fired for misconduct.

Almost surely, some at T-Mobile felt this way about Colucci’s claim. But plaintiff’s counsel can chip away at the armor of an employee misconduct defense, as happened here.  Robson’s credibility was tainted by his comments and Colucci’s complaint against him. The determination that Colucci’s side hustle warranted discipline was weakened by evidence that other employees did the same thing. And the validity of the discipline was undermined by the failure to follow T-Mobile’s progressive discipline policy.

5. Consider a complaint hotline

Part of the appellate court’s reasoning for trimming the punitive damages award was T-Mobile’s “integrity hotline” for employee complaints, which evidenced that the company maintained policies and procedures to prevent workplace misconduct. A complaint hotline can undercut arguments that an employee felt he or she had no recourse to complain about harassment or mistreatment.

That said, make sure a complaint hotline works for your business. Such a hotline can be a double-edged sword if complaints are not acted on.