I was so proud of myself at the beginning of the pandemic for not giving into the hype and watching Netflix’s Tiger King. In the face of countless memes, tweets, and discussions, I remained undaunted in the face of the social pressure to engage the show.
When Netflix released Squid Game in September of this year, I also intended on passing. However, I was ultimately overcome by an appreciation for—and curiosity about—South Korean film and television. Also, there were lit memes.
The premise of Squid Game, as described by Wikipedia, is as follows:
Seong Gi-hun, a divorced and indebted chauffeur, is invited to play a series of children’s games for a chance at a large cash prize. Accepting the offer, he is taken to an unknown location where he finds himself among 456 players who are all deeply in debt. The players are made to wear green tracksuits and are kept under watch at all times by masked guards in pink jumpsuits, with the games overseen by the Front Man, who wears a black mask and black uniform. The players soon discover that losing a game results in their death, with each death adding ₩100 million to the potential ₩45.6 billion grand prize. Gi-hun allies with other players, including his childhood friend Cho Sang-woo, to try to survive the physical and psychological twists of the games.
In facilitating the games, said “masked guards in pink jumpsuits” engage in a fair amount of violence, up to and including murdering losing contestants. It’s pretty clear they are doing so at the direction of the Front Man and their other bosses at Squid Game, Inc. But what if the folks facilitating the games were discovered and sued for the guards’ activities? Could they simply say, “We didn’t do anything—it was the guards”?
Unfortunately for the individuals in charge of the games and who employ the guards, the doctrine of respondeat superior—a type of vicarious liability—would likely prevent them from claiming they should not be held liable for actions of their minions. According to Cornell Law School’s Legal Information Institute, respondeat superior is “[a] legal doctrine, most commonly used in tort, that holds an employer or principle legally responsible for the wrongful act of an employee or agent, if such acts occur within the scope of the employment or agency.”
In Mary M. v. City of Los Angeles, in an opinion issued in 1991, the California Supreme Court stated that respondeat superior “is based on a deeply rooted sentiment that it would be unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities.” In articulating the policy rationale underlying the doctrine, the Court noted the following: “(1) to prevent the recurrence of tortious conduct; (2) to give greater assurance of compensation for the victim; and (3) to ensure that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury.”
The contours of vicarious liability under the respondeat superior doctrine may vary by jurisdiction. California courts, for example, have taken a broad view of the types of actions considered to be within the “scope of employment.” Under California law:
- The fact that an employee is not engaged in the ultimate object of his or her employment at the time of his or her wrongful act does not preclude attribution of liability to an employer.
- Where the employee is combining his or her own business with that of his or her employer, or attending to both at substantially the same time, no inquiry will be made as to which business the employee was actually engaged in at the time of the injury, unless it clearly appears that neither directly nor indirectly, he or she could have been serving the employer.
- An employer’s vicarious liability may extend to willful and malicious torts of an employee, as well as negligence.
- An employee’s tortious act may be within the scope of employment, even if it contravenes an express company rule and confers no benefit to the employer.
However, vicarious liability under respondeat superior has its limits, even in my beloved, employee-friendly home state of California. As discussed by the California Supreme Court in its 1995 opinion in Farmers Insurance Group v. County of Santa Clara, “if an employee’s tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior to or subsequent to the offense will not give rise to an action against the employer” because, “[i]n such cases, the losses do not foreseeably result from the conduct of the employer’s enterprise and so are not fairly attributable to the employer as a cost of doing business.”
If one were to apply respondeat superior to circumstances presented in Squid Game, there is no doubt that (1) holding the Front Man and others running the games responsible for the actions of their guards would be consistent with the public policy considerations underlying the doctrine and (2) the guards are acting within the scope of their employment.
- Tim Reed's legal practice is focused on the defense of employers in legal disputes in state court, in federal court, and before administrative agencies. Tim has spent his entire legal career representing employers both in the courtroom and before administrative agencies in defense of a wide range of employment law claims including discrimination, harassment, retaliation, wrongful termination, breach of contract, defamation, and wage and hour claims. To help employers avoid costly employment law litigation and administrative agency compliance issues, Tim regularly provides his clients with preventive counsel regarding workplace policies and personnel management issues. Tim has resolved numerous matters to the satisfaction of clients in various industries, including by disposing of claims at summary judgment, obtaining favorable rulings from administrative agencies such as the California’s Division of Labor Standards Enforcement, and successfully engaging in mediation. In light of the constantly evolving employment law landscape, Tim devotes much of his time to keeping abreast of emerging legislative and legal developments that impact his clients’ employment practices. Tim has co-authored numerous articles published in The Daily Recorder covering a breadth of employment law issues. Find him on LinkedIn here.
The coronavirus (COVID-19) outbreak is top of mind for HR professionals and employers nationwide. Our latest interactive map of COVID-19 cases has been adjusted to reflect the rise in cases in the United States. Read on to view our updated color-coded map, a list of resources, plus an animation showing how our map has developed over time.
Our interactive COVID-19 case map originally launched on March 16, 2020, and in the first few weeks of the pandemic, we adjusted our map legend four times to keep up with increasing numbers. On April 7, we finally settled on a range that we thought would cover a worst-case scenario. Unfortunately, the legend proved to be insufficient as the months passed, and by August, only 12 states had not crossed our map’s highest threshold of 20,000 cases. We (and a few of our readers) realized a new legend was necessary.
Before we “moved the goalposts,” however, we thought it was important to show where we have been in our national fight against this health and safety threat. The below animation shows how our original interactive map developed between April 7 and August 7.
Our new map below (finalized August 12) has increased the numbers within the legend tenfold, with the lowest range set at 5,000 or fewer cases and the highest at over 200,000 cases. We sincerely hope we will not have to adjust the legend again, and as we continue to confront the coronavirus and mitigate the health and safety risks within our workplaces and communities, it’s important for HR professionals to consult reliable resources.
Data source: Johns Hopkins University & Medicine’s Coronavirus Resource Center, which pulls data from WHO, CDC, ECDC, NHC, DXY, and local media reports
Employers and HR pros must keep legal and practical considerations in mind when looking to keep their workforce safe.
Preventing exposure. You may wonder whether you can keep employees away from work if they have been exposed to COVID-19. The answer is yes. You can keep employees off work either because of a public health quarantine or at your request. Also, you’re within your rights to send employees home who come to work with active symptoms.
Cleanliness. A policy on office cleaning and hand-washing can limit the spread of viruses. The type of program you need depends on your circumstance, including the industry you are in. Health care, child care, and food preparation all have different rules that might not be the same for other industries.
Absenteeism. If you ask an employee to stay home because of exposure to something that may become a pandemic, it doesn’t seem fair to count the incident as absenteeism. The employee is being asked to stay home by you, the employer, or by a mandatory requirement from public health authorities. It would be difficult to justify a termination based on absenteeism in that circumstance.
Check your policies to make sure you inform employees that they must tell you of exposure to any highly communicable disease. Have policies in place indicating you may send employees home who are exhibiting symptoms, including fevers over 100 degrees, active diarrhea, or vomiting, or who have been traveling in virus hot spots.
Also, remember that scientific understanding of the virus is increasing, and protocols from the Centers for Disease Control and Prevention (CDC) may change. Continue to consult with your attorney on procedures related to traveling employees or those who may be subject to quarantine as the CDC continues to assess the risk.
Check out these additional resources to help you with hiring, communication, and remote work.
COBRA. Consolidated Omnibus Budget Reconciliation Act (COBRA) administration depends on notices being sent within specified time periods measured around the occurrence of a qualifying event.
In general, an employer has 30 days to notify a plan administrator of a qualifying event that is a termination of, or a reduction of hours in, employment or an employee’s death. Qualified beneficiaries have 60 days to notify a plan administrator of other qualifying events, such as a divorce or legal separation or a dependent child ceasing to be a dependent child under the plan terms.
In cases of past severe disasters, such as hurricane activity, the Departments of Labor and the Treasury have issued guidance requiring flexibility in applying COBRA timing requirements. The agencies issued informal guidance stating that regarding deadlines for making COBRA elections:
“The guiding principle for plans must be to act reasonably, prudently and in the interest of the workers and their families who rely on their health plans for their physical and economic well-being [and] plan fiduciaries should make reasonable accommodations … to minimize the possibility of individuals losing benefits because of the failure to comply with pre-established timeframes.”
In these emergency situations, plan administrators need to think through the issues and come up with some administrative fixes. Here are some key steps plan administrators could consider as they attempt to address the issues raised by the recent COVID-19 pandemic.
FLSA/wage and hour. Wage and hour issues under the Fair Labor Standards Act (FLSA) can be tricky:
- Business travel: If a nonexempt employee is on a business trip and is quarantined, the overnight travel rules will apply, with the employer being responsible for providing payment for wages that cut across the workday and for all time the person is, in fact, working. For exempt employees, if the absence is occasioned by the employer, the company is liable for the individuals’ ongoing wages and may not deduct from actual salary. Paid time off (PTO) can be deducted but only until it’s exhausted.
- Personal travel: If employees are on a personal trip and quarantined, they aren’t typically entitled to wages, no matter if they’re exempt or nonexempt. Note the rules for partial-day absences for exempt employees still apply.
Healthcare benefits. High-deductible health plans (HDHPs) may cover COVID-19 testing and treatment without jeopardizing participants’ eligibility for a health savings account (HSA), according to March 11 guidance from the Internal Revenue Service (IRS).
An otherwise HSA-compatible HDHP will not lose that status “merely because the health plan provides health benefits associated with testing for and treatment of COVID-19 without a deductible, or with a deductible below the minimum deductible (self only or family) for an HDHP,” the IRS stated in Notice 2020-15. “Therefore, an individual covered by the HDHP will not be disqualified from being an eligible individual” who may contribute to an HSA.
“Due to the nature of this public health emergency, and to avoid administrative delays or financial disincentives that might otherwise impede testing for and treatment of COVID-19 for participants in HDHPs,” the IRS applied this safe harbor to “all medical care services received and items purchased associated with testing for and treatment of COVID-19.”
The guidance does not actually require health plans to cover any specific service. “Individuals participating in HDHPs or any other type of health plan should consult their particular health plan regarding the health benefits for testing and treatment of COVID-19 provided by the plan, including the potential application of any deductible or cost sharing,” the IRS stated.
Health Insurance Portability and Accountability Act (HIPAA). “Federal privacy laws, such as HIPAA, can create complexities for many plan sponsors as they attempt to weigh the privacy rights of an employee or dependent who has contracted COVID-19 against preserving public safety, including that of the employee’s or dependent’s co-workers, family, and friends,” according to a blog post from Morgan Lewis attorneys Saghi Fattahian and Michelle McCarthy.
A recent bulletin from the U.S. Department of Health and Human Services (HHS) clarified the application of HIPAA’s privacy rules, including its exception for public health-related disclosures, in the COVID-19 context.
“The protections of the Privacy Rule are not set aside during an emergency,” but the rule still allows protected health information (PHI) to be used and disclosed “when necessary to treat a patient, to protect the nation’s public health, and for other critical purposes,” HHS’s Office for Civil Rights (OCR) explained.
The OCR issued the bulletin “to ensure that HIPAA covered entities and their business associates are aware of the ways that patient information may be shared under the HIPAA Privacy Rule in an outbreak of infectious disease or other emergency situation.” The agency has periodically issued this type of guidance in response to crises such as natural disasters, mass shootings, and the 2014 Ebola outbreak.
“The most important thing to remember is that basic requirements of HIPAA still apply even in a public health emergency,” according to Mintz Levin attorney Kristen Marotta. HIPAA allows covered entities to use and disclose PHI without a patient’s authorization for treatment, payment, and healthcare operations. However, the existence of a public health emergency “does not mean that covered entities can freely disclose PHI for other purposes,” she noted. “Disclosure of PHI to the media or others not involved in the patient’s care is generally not permissible.”
Paid sick leave. Employees across the country who may be worried about not collecting a paycheck while their employers are shut down due to COVID-19 can breathe a little easier. On March 18, 2020, President Donald Trump signed a new bill into law that will allow employers to provide paid sick leave to employees impacted by the outbreak.
The legislation will affect employers with fewer than 500 employees. Larger employers will be excluded, and employers with fewer than 50 employees will be able to apply for an exemption if complying with the requirements will jeopardize the viability of the business as an ongoing concern, according to a summary of the legislation provided by Ryan J. Funk and Susan W. Kline, attorneys with Faegre Drinker in Indianapolis, Indiana.
The legislation will provide employees of covered employers with up to 80 hours of paid sick leave, available for immediate use regardless of how long the employees have worked for the employer, according to the summary from Funk and Kline. Part-timers will be paid on a prorated basis.
The law will become effective within 15 days of enactment. The benefits provided in the legislation will expire December 31, 2020. The new law is separate and above any existing sick leave entitlements. The new law requires covered employers to provide all employees who are affected by COVID-19 with up to 80 hours of paid sick time under specific circumstances.
Outside of those circumstances, an employee is subject to existing sick leave entitlements. The new law will temporarily trump any and all state or municipal laws, and then regular state sick leave laws will kick in after that.
OSH Act. Employers have an obligation to provide a safe workplace under the Occupational Safety and Health Act’s (OSH Act) General Duty Clause. In some circumstances, such as with healthcare workers, exposure to illnesses is an inherent job risk, but the employer still has an obligation to minimize the danger.
If part of an employee’s job is travel and there is an existing pandemic, an employer could face issues when sending employees into viral hot zones. A U.S. employer currently sending someone to China has a greater risk of being held responsible for exposure than an employer that chooses to delay the travel.
WARN Act. If your company has to lay off workers as a result of loss of business due to COVID-19, keep the Worker Adjustment and Retraining Notification Act (WARN Act) in mind. This law requires certain employers to give advance notice of significant layoffs to employees and others. Layoff notice requirements are intended to protect employees, their families, and communities by giving employees a transition period in which they can adjust to losing their jobs, obtain other work, or pursue training for other work.
Although the basic idea behind the WARN Act is fairly straightforward, the law is filled with technical requirements that can trip up supervisors and HR specialists. In a nutshell, the WARN Act requires businesses that have at least 100 employees to give 60 days’ advance notice of any mass layoff or plant closing to affected employees, unions, and local and state governments. To determine how many employees an employer “has” under the WARN Act, it must count all employees at every location, not just the location where employees are being laid off.
Layoff notice is required when an employer experiences a “plant closing” or “mass layoff ” in which at least 50 employees lose their jobs during a 30-day period. Although part-time employees are not counted in determining whether a reduction in force affects enough employees to trigger the WARN Act, they are entitled to WARN Act notice if they’re being laid off.
There are so-called “mini-WARN” acts in the following jurisdictions: California; Connecticut; Washington, D.C.; Georgia; Hawaii; Illinois; Iowa; Maine; New Hampshire; New Jersey; New York; Tennessee; Vermont; and Wisconsin. The city of Philadelphia also has its own WARN Act.
Some states—Georgia, Maryland, North Dakota, and Ohio—require notice to state agencies but not to employees, and Michigan and Minnesota encourage, but don’t require, notice to employees before closings or mass layoffs.
However, in light of COVID-19, California is putting the WARN Act on hold. On March 17, California Governor Gavin Newsom signed an Executive Order implementing important temporary modifications to Cal-WARN to assist employers in the current crisis. If your state has a mini-WARN Act of its own, you’d be wise to follow your governor’s next steps.
Unemployment benefits. Most states have a 7-day/1-week waiting period for unemployment benefits, but many have waived, or are considering waiving, this requirement to address COVID-19-related temporary furloughs.
In California, for example, Newsom recently waived the 1-week waiting period so unemployed workers may collect benefits for the first week they are out of work, and the California Employment Development Department has indicated that reduced hours because of COVID-19 will qualify for partial wage replacement benefits, too.
Alabama, Kentucky, Illinois, Minnesota, New Hampshire, New York, Ohio, Pennsylvania, and Rhode Island also recently waived their waiting periods for COVID-19-related unemployment. Wisconsin’s and Massachusetts’ governors have asked their state legislatures for a waiver that is expected to be granted soon.
Because the current situation is very fluid, it is likely that many, if not all, states will follow suit regarding COVID-19 coverage, and employers will have to keep checking state requirements. Every state has an unemployment compensation agency that should be able to provide you with information on how the state is addressing COVID-19-related furloughs, layoffs, and shutdowns.
Whistleblowing. What if you have employees who refuse to come to work because they are afraid of exposure? It depends on the nature of the potential risk and exposure. There have been instances during severe acute respiratory syndrome (SARS), or more recently with measles outbreaks, when employees have refused to travel even though their mobility was essential to the job.
An employee’s complaint about workplace safety could kick in the OSH Act’s whistleblower protection requirements. However, if the fear is more generalized, simply based on worries relating to media coverage or more general pandemic questions, your concerns may not be objective. If you can show there is no substantial risk and you’ve taken steps to mitigate and respond to the danger, whistleblower protection is less likely.
Workers’ compensation. Workers’ compensation is another area to consider, says Jo Ellen Whitney, an attorney with the Davis Brown Law Firm in Des Moines, Iowa. In general, getting sick with something like the flu while on business travel isn’t covered by workers’ comp because that could happen anywhere, not just on business travel.
“That is true even in health care if you work as a floor nurse and get sick, but I have not seen any cases on how this same issue would be addressed in the event of an employee being sent into a target zone when caring for the ill is not his or her job,” she says. “Most people try to stay ahead of that issue by pulling their people out.”