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Coronavirus-safety lawsuits against employers begin

Employees have begun filing lawsuits against their employers alleging inadequate safety measures in place to protect against coronavirus.

So far, two lawsuits have reached an initial-decision stage:

  1. Rural Community Workers Alliance v. Smithfield Foods, Inc., case no. 5:20-CV-06063-DGK. See Order Granting Defendant’s Motion to Dismiss dated 5-5-2020.
  2. Massey v. McDonald’s, case no. 2020CH04247. See initial complaint, which news reports advise was sustained against a motion to dismiss, by way of a verbal order from the bench that has not (yet?) been reduced to writing and that, instead, set the matter for a forthwith hearing regarding a possible preliminary injunction.

The McDonald’s complaint alleges that the company has taken inadequate safety precautions to protect against coronavirus and asserts claims that, as a result, its restaurant operations at the locations identified in the complaint constitute “public nuisances” that endanger the public, including not only customers but the plaintiff (and requested class-action members) employees and, further constitute the tort of negligence against the plaintiffs (and requested class-action members) who are employees. The complaint further includes a negligence claim against individual store owners.

While the McDonald’s complaint has reportedly been set for a preliminary injunction hearing, the plaintiffs may take little comfort from the Smithfield Foods case, which was also set for such a hearing, but then dismissed.

Employers can expect to see more of such lawsuits filed as the country struggles through the coronavirus crisis, but it seems the court in the Smithfield Foods case reached the right conclusion. Coronavirus is a national crisis. It is not a risk specific to any given workplace. COVID-19 is a novel virus. Not just companies, and individuals, but the government itself is struggling to determine what proper safety measures are in the workplace.

Most importantly in these cases, workplace safety is within the exclusive jurisdiction of OSHA. Congress created extensive regulatory procedures and protections within the OSHA administrative framework. One such right is not a private right of action by workers who wish to challenge workplace safety measures. Employees must pursue their concerns through the OSHA process, not by filing private lawsuits in court.

To the extent plaintiffs try to cloak their negligence claims as “public nuisance” claims, the same reasoning applies, as the court noted in the Smithfield Farms case.

The parties agree that the Plant cannot be a public nuisance simply by virtue of the fact that it is a meat-processing plant during a global pandemic. Moreover, in this case, Smithfield has implemented substantial health and safety measures to protect Plant workers, and no employees of the Plant have been diagnosed with COVID-19. While Plaintiffs argue that Smithfield could do more to protect its workers, that is not the issue before this Court. The issue is whether the Plant, as it is currently operating, constitutes an offense against the public order. Because of the significant measures Smithfield has implemented to combat the disease and the lack of COVID-19 at the facility, the Plant cannot be said to violate the public’s right to health and safety.

The court there concluded its analysis by emphasizing that it was sympathetic to the plaintiffs’ concerns, but that those concerns should be raised to the appropriate workplace safety agencies, primarily OSHA.

Plaintiffs are naturally concerned for their health and the health of their community in these unprecedented times. The Court takes their concern seriously. Nevertheless, the Court cannot ignore the USDA’s and OSHA’s authority over compliance with the Joint Guidance or the significant steps Smithfield has taken to reduce the risk of a COVID-19 outbreak at the Plant.

Pennsylvania Supreme Court recognizes negligence tort for employer’s failure to protect private employee information

Employers are well aware of various statutory obligations that companies have to protect employee (and consumer) private information, including for example social security numbers, medical records, etc. One example is Colorado‘s relatively recent statute.

The Pennsylvania Supreme Court has extended statutory data privacy laws now, for companies in Pennsylvania, to be a common law principle. Even without — or in addition to — existing statutory data privacy laws and any contracts that the company may have entered into that promised data privacy protections, the Pennsylvania Supreme Court has ruled that employers have a common law duty — as part of the duty not to engage in negligence — to use reasonable steps to protect the private information of its employees. It is not clear whether this duty extends to the private information stored for customers (and anyone else).

(W)e hold that an employer has a legal duty to exercise reasonable care to safeguard its employees’ sensitive personal information stored by the employer on an internet-accessible computer system.

What specific steps should an employer take? The court did not say, but, in an aside, one comment from the court suggests that companies should consider, at the very least, “implementing adequate security measures to protect against data breaches, including encrypting data properly, establishing adequate firewalls, and implementing (an) adequate authentication protocol.”

Source: Dittman v. University of Pittsburgh Medical Center, 196 A.3d 1036 (Penn. 11/21/18).