As part of Avvo’s ongoing mission to provide transparent and comprehensive legal assistance, we’re pleased to present the second installment of Avvo 1-on-1, a new question-and-answer article series featuring candid interviews with attorneys in various specific fields of law.
The goal of the series is to humanize intimidating law topics for the everyday person through stories, anecdotes, and other real-life experiences shared by attorneys.
For the second Avvo 1-on-1 we spoke to Sidney L. Gold, an employment attorney practicing in New Jersey and Pennsylvania.
Mr. Gold is a 1975 graduate of Temple University School of Law. As a New Jersey and Pennsylvania employment lawyer, he has extensive experience counseling employers regarding compliance with Title VII, the ADA, and the ADEA and FMLA. He serves as an arbitrator and mediator for the U.S. District Court for the Eastern District of Pennsylvania. He has also served as Vice Chair of the Eastern Pennsylvania Chapter of the National Employment Lawyers Association. He is well-recognized as the preeminent Pennsylvania employment lawyer, having over 40 years of experience.
Let’s start with the pandemic we’re currently living through. Have you ever seen something of this magnitude as it relates to employment law?
I never lived through a pandemic like this. I’ve never seen one like this and we still don’t know when we’ll be back to normal. It creates a lot of anxiety in the minds of everybody: the employer and the employee. On the one hand, you want to keep your employees; on the other hand, you want to preserve your business – and they both go hand-in hand.
How do you think this pandemic will affect the employment industry?:
I think we’re going to see claims for disability discrimination. I think what’s going to happen is when everyone eventually goes back to work, employers are going to be faced with the possibility that employees might try to come back to work with the virus.
Even today when someone goes out on FMLA (Family and Medical Leave Act), when the 12 weeks has expired, what’s the obligation of the employer to allow the employee to take additional time off? Can an employer require an employee to be 100 percent before they come back to work? The answer is no.
I predict another level of lawsuits against employers, depending on how educated they are in handling these types of claims, and hopefully prevent these types of claims. Unfortunately, we find that some employers aren’t as sophisticated as others. I would expect the Fortune 500 companies to have everything in order. I think the smaller employers and midsize employers are going to be facing a host of issues that they never anticipated.
Under Workers Compensation, some employees might make claims that they got the virus while they were working so it’s going to be another layer of work for the employer. It’s going to lead to all kinds of issues.
What are the proper steps to take if an employee thinks they contracted COVID-19 from work?
You would need to have proof that you contracted it at work. Without proof you won’t be able to recover any workers’ compensation rights. If you come into work and your employer suspects that you may be carrying the virus and you’re not and you’re fired, you’d have a claim under the Americans with Disabilities Act (ADA).
Also we’re going to have situations where your spouse, your child or an elderly person in your family is susceptible to getting the virus and you need to take some time off to take care of that person. We’re going to find that employers will either have no tolerance for that, or they might demand the employee come back to work before a family member is cured or when their elderly parent still needs attention. There’s no hard and fast rules on this. We understand the employee has rights and the employer has rights. Our job is to find out where the middle ground is.
What should an employee do if they were wrongfully terminated, whether due to COVID-related concerns or in general?
Once let go, many employees are confused. They believe they were fired without cause, weren’t given notice, or the employer didn’t follow the progressive discipline plan. Unfortunately, those are not valid claims that can be asserted by 99% of the employees unless they are in a union or have an employment contract. So, in essence, you can be fired at cause or no cause if you’re an at will employee.
Generally speaking, what should an employee do if they feel discriminated against in the workplace?
Anytime you think you are the victim of discrimination in the workplace you need to register your complaint with HR so you’ve reserved your rights. It’ll make life a lot more difficult to insert information post-termination, when you’re now trying to claim a hostile work environment based on age, religion, sex, disability, or sexual harassment. You basically forfeit your rights by not asserting them. So, it’s important for an employee to assert their rights and for it to be in writing.
How can clients avoid the difficulty of paying legal fees when dealing with an employment issue?
We represent most employees on a contingency fee basis. These claims are very labor-intensive and very complicated legally. You need to pay depositions and have experts lined up. So, you need to have a skilled lawyer in order to have any chance of success.
What does the future hold for the world of employment law?
I think this bill that was just passed by Congress will go a long way to helping us get over this. I think it’s a great thing.
Normally when someone goes on unemployment compensation, it’s 26 weeks at two-thirds of their salary. This bill is actually going to be beyond 26 weeks and it’s going to be 100 percent of your salary. I think we need to look at the industries that have been impacted. There’s no restaurant business, there’s no retail business, these are industries that shut down and we might lose these businesses. If we lose a Neiman Marcus, or you lose Ford, or you lose a cruise line you’re looking at jobs that will never come back. We’re looking at losing hundreds of thousands of jobs. It’s just a total disaster, but we’ll get over it. We’ll get over it.”
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