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As employers continue to grapple with the fallout from the pandemic, the immediate threat of COVID-19 litigation looms large. To help you stay one step ahead, the Jackson Lewis COVID-19 Employment LitWatch tracks complaints filed in federal and state courts nationwide that allege labor and employment law violations related to COVID-19.

The Jackson Lewis COVID-19 Employment LitWatch tracks civil complaints filed in federal and state courts across the country that both are related to the COVID-19 epidemic and raise labor and/or employment law issues. Cases that merely referenced COVID-19 are not included. The COVID-19 Employment LitWatch is meant to provide trends and should not be considered an exhaustive dataset.

Jackson Lewis has a dedicated team tracking and responding to the developing issues facing employers as a result of COVID-19, which includes members from:

Please contact a team member, practice group leader or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

Data Collection Methodology

The LitWatch data is based on a feed of thousands of civil complaints filed per day that is provided by Courthouse News Service (CNS). 

On a daily basis, we search for new complaints filed in any jurisdiction that reference the term "COVID-19" (and its various synonyms).  Not every complaint returned by that search will be included in the LitWatch tracker.  Instead, our expert reviewers include complaints only when:

  • The complaint involves a labor or employment related dispute between an employee and an employer; and
  • There is a sufficient “nexus” between the underlying claim and the COVID-19 pandemic, rather than a mere incidental connection.  (Thus, our experts would exclude a complaint for breach of contract where the complaint merely notes that the alleged breach occurred two months before mandated business closures due to COVID-19).  

We believe this methodology will result in a very high rate of precision (i.e., virtually every complaint that is included matches the above criteria) but a lower rate of recall (i.e., some complaints that match the criteria may be excluded).  Therefore, we expect the total number of complaints listed in the LitWatch to be slightly lower than the number of complaints that may be reported elsewhere (i.e., in other litigation trackers or reports).

After excluding the complaints that do not meet our strict criteria, each remaining complaint is then categorized by our experts.  Often, a complaint will include claims that fall into multiple categories.  In those cases, our experts will choose the single most appropriate category.

Lastly, based on our review of COVID-19-related labor and employment complaints filed between January - August 2020, we determined that an overwhelming majority (approximately two-thirds) of complaints involve an allegation of wrongful termination. Typically, each of these complaints contains an underlying claim that led to the employee’s termination, such as, for example, an employee requesting an accommodation.  In those cases, we categorize the complaint based on the underlying claim (for example, “Disability, Leave & Accommodation”), but separately flag the complaint as alleging wrongful termination.  By doing so, the category trends can be isolated from the wrongful termination trends.  See our data on all wrongful termination complaints by accessing the “Additional Trends” page. In a few instances, we categorize wrongful termination complaints as “Other,” simply because none of our other underlying categories apply.

Capabilities of the LitWatch

The LitWatch can be used in numerous ways to understand the scope and trajectory of COVID-19 related employment litigation and to identify significant trends, including:

  • Details for Each State.  Hover over a state on the map to view additional details.  Click on a state and the “View State Details” button will be revealed.  Click on that button and the page will display in-depth information about the litigation in that state, including a list of every complaint filed, organized by category.  Click on a complaint and select the now visible “View Complaint Details” button to view additional details about the selected complaint.
  • Complaints by Category.  In the matrix on the right side of the page, view each category of complaints, including single plaintiff matters vs. class actions.  The categories are sorted in descending order by total number of complaints, making it easy to identify the most common categories.  Dive into any category to see totals by state, starting with the states that have the most complaints.
  • Complaints by State.  Similarly, in the matrix on the lower right corner of the page, view complaints by state, broken down by State vs. Federal filings, sorted in descending order by total number of complaints, making it easy to identify the states with the highest levels of litigation.  Dive into any state to see the totals by category, starting with the category with the most complaints.
  • Changes in the Number of Complaints Filed Over Time.  Right below the map, view the number of complaints filed per week, as well as the cumulative count of all complaints that have been filed. Consider how the number of complaints has changed (or held steady) over time. 
  • Changes in Complaints Filed Over Time by Categories or States.  In the lower left corner, the matrix shows trends in complaint filings by categories or states over time, in descending order from the current week. Use the toggle to switch between viewing this data by categories and states.
  • Additional Trends.  To view additional litigation trends, click on the “Additional Trends” button on the top right of the page.  On this ”Additional Trends” page, the complaint data has been compared against other, critical data, such as state populations and COVID-19 infections per state.  These comparisons show the number of complaints filed in each state in relative terms, rather than absolute terms.  For example, as the most populous state, it is no surprise that California would have the most COVID-19 related complaints. However, the number of complaints per million people or per 100,000 COVID-19 infections actually removes California from its top spot.  Other much smaller states surprisingly have a larger number of complaints per capita (e.g., Kentucky).  The number of complaints over time is also compared against the number of new COVID-19 infections over time.  Finally, the complaint data is presented from different perspectives, such as: (i) states with a high proportion of federal vs. state filings, (ii) categories of complaints that have a high proportion of class action filings, and (iii) a breakdown by underlying category of complaints that allege wrongful termination. 

Disclaimer

This material is provided for informational purposes only and is intended solely to inform the recipient about general litigation trends. It does not purport to contain an exhaustive list of COVID-19 related employment complaints.  It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions.  Prior results do not guarantee a similar outcome.