Is COVID-19 Amplifying Employment Litigation?

The quick answer is “yes” — there are far more employment lawsuits today than compared to a year ago. Since March, the number of new lawsuits has steadily climbed. Industry analysts expect this trend to continue for some time, especially if the U.S. fails to offer a meaningful vaccination or implement universal preventative measures. Pro bono lawyers are having a difficult time keeping up with the needs of low-income communities around the country, but they’re doing their best.

Coronavirus has everyone somewhat anxious about the future. Some have lost their jobs already. Some are still employed, but at increased risk because they were deemed “essential.” And some are at increased risk of infection due to other factors like age or underlying conditions such as diabetes and heart disease. Some have family members who fought and succumbed to the disease coronavirus causes, COVID-19.

The number of lawsuits is skyrocketing for at least three reasons. One, most essential workers never received any hazard pay, even though they’re the ones taking the biggest risk. They’re also effectively making less money than some people who lost their jobs in March and April but were able to get on unemployment. Two, many employers have been accused of failing to follow CDC guidelines on how to reduce the opportunity for coronavirus to propagate in a workplace. Three, employees have new rights because of new laws passed. Not all employers have had an easy time implementing the needed changes in the workplace. Workers aren’t happy.

There are a number of reasons a worker might make that fateful call to an employment lawyer.

One is FMLA interference. FMLA is time off thanks to the Family and Medical Leave Act. Employers who do not approve FMLA leave when an employee has shown symptoms of coronavirus and/or been asked by his or her doctor to quarantine are subject to extreme litigation. One woman in Kentucky claimed that she was fired after requesting the leave in Hockersmith v. Elmcroft.

One of the most classic reasons for employment litigation is becoming more popular in the age of coronavirus: retaliation. When one plaintiff was denied medical leave (which would have been covered by workers’ comp) in Castaneda v. Niagara Bottling LLC, he complained about the lackluster coronavirus safety measures and was subsequently terminated. 

Another possible reason to sue is breach of contract. In Kalsey v. Dialsource, Inc., one contracted worker was fired when the contractor’s financial situation changed due to COVID-19. The employer offered a severance package, but the contracted employee turned it down as breach of contract. The employer still fired the contracted employee — but this time the reason was “for cause.” Allegedly, there was none. 

Lastly, discrimination cases are also on the rise. Perhaps this is because employers feel they can get away with more in the Trump era, or perhaps they think everyone is too concerned with coronavirus to notice. That’s not the case, and new lawsuits are pouring in everyday.

Pro Bono Legal Experts Hail Recent Ruling About Detention Centers A Major Victory

Many pro bono lawyers have spent countless hours fighting against the unimaginable cruelties continuing to take place along our southern border. Those lawyers are celebrating today after Federal Judge Dolly M. Gee for the U.S. District Court in the Central District of Columbia ruled that migrant children — who have often been separated from their parents indefinitely — must be released immediately due to concerns about the spread of coronavirus in those detention centers.

On June 8, 2020, ICE had 124 migrant children detained. They now have until July 17 to set them free. Of the 8,858 detainees at these centers, at least 751 are confirmed to have caught coronavirus.

Descriptions of the conditions inside these detention centers have been horrific. A letter penned by lawyers and organizations providing free legal aid said, “The Administration must stop using this public health crisis as a means for implementing unlawful and inhumane immigration policies. In these extraordinary times, human suffering need not be compounded by locking up families or instilling fear in the hearts of migrant parents.”

The letter was addressed to Homeland Security Secretary Chad Wolf alongside Matt Albence, the acting Immigration and Customs Enforcement director.

U.S. Immigration and Customs Enforcement has alerted authorities that the legal order is current under review.

Gee wrote, “Although progress has been made, the Court is not surprised that [COVID-19] has arrived at both the [Family Residential Centers] and [Office of Refugee Resettlement] facilities, as health professionals have warned all along.”

One lawyer who was representing a class action lawsuit related to the detention of these families, Holly Cooper, said, “In order to do it in a humane way, they have to release the child with a parent…ICE makes a real horrible guardian of children … and so far ICE has opted to keep children detained … during a global pandemic.”

Not anymore!

New Student-Led Project Aims To Provide Pro Bono Services In Wake Of COVID-19

Thousands of American families are teetering on the brink of financial destruction right now. The reason why is obvious: coronavirus has all but shut down daily operations all over the world. Non-essential businesses are closing, employees are being fired by the millions, and unemployment benefit applications are skyrocketing. The economy is in freefall with no end in sight. That’s why we need pro bono help wherever and whenever we can find it.

One student-led project wants to provide support right now.

University of North Carolina Chapel Hill School of Law student Alyssa Leader saw thousands of tweets on Twitter from people crying out for help. Determined not to let these voices go unheard, she launched the Law Student COVID-19 Pro Bono Support Project.

These efforts are encouraging, but let’s not forget that immigrant families — and certainly those families seeking asylum protections at our southern border — need financial and legal protection as well.

Dozens of human rights and health organizations have sent a letter to Senators Nancy Pelosi and Charles Schumer to plead for additional protections for immigrant families:

We are writing to urge you to address to major provisions of the proposed COVID-19 relief bill that will exclude millions of immigrant families, including U.S. citizen children. We cannot protect the nation from the Coronavirus and its economic impact if we deny health care and financial relief to a large segment of our communities. The virus and its effects do not discriminate based on immigration status, and neither should relief efforts.”

It continues: “The Families First Coronavirus Response Act’s Medicaid state option for the uninsured excludes some green card holders and many other people who are lawfully residing in the US. Federal Medicaid is available only to a certain subset of immigrants who have had a ‘qualified’ immigration status for five years, ‘humanitarian’ immigrants, military/veterans and their families, and in some states, lawfully residing children and/or pregnant women.”

The organizations responsible for penning the letter didn’t just approach the pair of senators with problems. They also offered solutions. They named specific sections of the new $2 trillion deal already signed by Donald Trump for revision. 

The damage already done by the coronavirus outbreak and the disease it causes, COVID-19, is catastrophic. But the damage it will do in the coming weeks and months makes everything so far look like a cakewalk at best. We need to continue to help one another out in these dark times.

Pro Bono Services Help Pendleton Correctional Facility Inmate Win Big In Court

When you hear the words “pro bono,” what do you usually think about? Most of us know that pro bono cases are those that are undertaken by lawyers for clients who cannot afford to pay. We usually attach a number of connotations to the phrase. Pro bono cases are for those who are taken advantage of by someone — renters, senior citizens, children, and even immigrants. But we usually don’t think of prison inmates when we consider the type of case that might warrant pro bono work.

But it was a Pendleton Correctional Facility inmate who won a massive $425,000 payout after prison staff left him in solitary for four years!

The case stems from a 2009 incident in which three men escaped from the aforementioned prison. Some officials believed that inmate Jay Vermillion had been involved in helping the escaped cons, and so they charged him with trafficking. He refused to answer their questions at the time — which it is his constitutional right to do. 

Vermillion said that it was his silence that bought him four years in isolation — or 1,513 days in total. He quickly appealed the decision of prison officials. According to state law, he couldn’t be placed in isolation for more than a month. Margaux Auxier, a Department of Corrections spokesperson, said that, technically, no one is placed in solitary confinement.

Instead, she explained, they are placed in areas of the prison where they would be restricted from seeing other prisoners. Which, when you think about it, sort of sounds like solitary confinement. Since by definition it is.

Vermillion said he was kept in a “solid concrete tomb with a solid steel door for 23-24 hours a day.”

He wrote to a number of attorneys, all of whom either ignored him or explained that there was nothing they could do within the realm of law. But in 2018 the United States District Court in Southern Indiana requested that attorneys Alice Morical and Chris Wagner of Hoover Hull Turner Law Firm take the case. They said they would.

Morical said, “When we got involved, [Vermillion] had successfully gotten the case past summary judgment, and the court felt like it was a good time to have a settlement conference.”

After hearing Vermillion’s story, they quickly organized a pro bono blitz to serve the prison with the lawsuit that he eventually won. 

Morical said, “They did an amazing job of working the case. They took depositions, got experts to provide expert report and really positioned the case well for trial and/or settlement. And at that point, when the case was very close to trial, they were able to get the case settled.”

Does Pro Bono Work Bolster The Case For Open Government?

Conservative media outlets have for years screamed that our constitutional freedoms are under assault. There’s a war on Christmas. There’s a war against guns. There’s a war against journalists. No matter where you look, it’s war. But the reality is a lot different. The world is becoming a lot better by almost every metric (except environmental protections). People are more educated and living longer. Infant mortality rates are at an all-time low. 

And there are more Democratic governments in the world today than at any other point in human history.

The Reporters Committee for Freedom of the Press has existed for 50 years, existing for no other reason than to protect the ability of journalists to do their job unencumbered by legal restrictions from an overbearing federal government. 

Journalists living in Pennsylvania are at the forefront of this fight. A new RCFP lawyer is joining them in their struggle to obtain access to classified government documents. Why do they want that information? They think it will help them dance around those aforementioned legal restrictions.

Journalists have been obtaining information from the government and sharing it with the public for a long time. That’s because the public is busy. Even though certain governmental activities are legally bound to be transparent, how many of us actually has enough time in the day to wade through the quagmire? Not many, we’d wager.

That’s why the RCFP is providing a “check” to government obstacles free of charge. The pro bono work will be done with the primary goal of ensuring transparency. 

Penn-Live Patriot News writer Michael Berry describes what they’re up against in an article titled “A pro bono mission for open government | Opinion.”

“In this kind of litigation,” Berry writes, “the laws often stack the deck in favor of secrecy. They provide no real-time remedy, and the litigation can go on for years. For example, the Right to Know Law provides an easy route to appeal when requests for records are denied. But, the agency that hears most appeals — the Office of Open Records — has no authority to enforce its decisions. And, public officials are free to appeal to court, where they can raise new issues and where the Office’s prior ruling has no significance.”

The Right to Know Law forces government organizations to keep public records of all activities.  Meanwhile, we have open courts (mostly) thanks to the Constitution. 

But some people in Pennsylvania don’t think these laws go far enough to provide information to those who need it, especially for ongoing litigation against municipal governments. Hopefully, that will all change soon.

Could New Pro Bono Services Increase Public Safety?

That’s the question being asked of Alaskan officials, lawmakers, law enforcement, and residents amidst an ongoing public safety crisis. The problems faced are so bad that even U.S. Attorney General William Barr has intervened with a declaration of national emergency. Barr announced a $59 million package that will be used for implementing new safety measures in rural Alaska. 

A separate measure would help indigenous people find missing loved ones by analyzing cold cases.

But most everyone agrees that another option would be the implementation of lower-to-no-cost legal services. It’s notoriously expensive to maintain residence in Alaska — so much so that the state actually provides a stipend available for most households. Whenever the need for legal services arises, it can be to the detriment of the family piggy bank.

This measure would help certain demographics more than others. Women, for instance, are adversely affected by domestic violence. Over half of women who reside in Alaska will fall victim to domestic violence. 

How would extra pro bono work help create better overall public health, though? The answer isn’t as complicated as you might think. Many large companies and corporations find loopholes in legal restrictions or outright break the law until someone comes along with a big enough lawsuit. But if no one can afford to sue a company whose lawyers are top of the line (i.e. expensive), then little can be done to shed light on the issues.

Hunsaker Ryan said, “I can tell when it’s a high ozone day. That’s one of my triggers. It does give me empathy for people who struggle with asthma, who do have triggers due to air pollution and who might not have access to health care.”

That’s why the Environmental Protection Agency is taking one such Colorado company, Front Range, to bat, going so far as to classify the company as seriously violating the Clean Air Act.

Sometimes Alaskan cases aren’t thrust into the spotlight like cases in the lower 48 are.

State Representative Tiffany Zulkosky (D-Bethel) writes: “The U.S. attorney general’s emergency declaration earlier this year reinforces the heartbreaking truth that rural public safety is in crisis. One that demands strategic and substantially funded partnerships. Alakans can no longer afford for the state to eliminate funding that supposedly goes unspent, just because it thinks it will save money in the short term. Shifting costs and deferring spending does not save money, it just hurts Alaskans.”

Rosita Kaahani Worl, Ph.D., president of Sealaska Heritage Institute, wrote that “public safety is a basic human right. The United Nations Declaration on the Rights of Indigenous Peoples can provide state elected officials a guide and recommendations to address the basic human rights of Alaska Natives and the inequities that exist in law enforcement and address long-term solutions related to these historical wrongs.”

And pro bono work can become a big part of those complex solutions.

Houston Having Trouble Finding Pro Bono Help For Low-Income Families

According to legal industry analysts, the increasing number of low-income families in Texas is beginning to make a dent in the economy — and it’s made even worse because those families can’t afford legal help when they need it most. The biggest problem of all? In other areas of the country, pro bono lawyers help those low-income residents out. That’s not the case in Texas, where the need for pro bono help is at an all-time high.

The Texas Lawbook recently reviewed the situation. According to its analysis, corporate law firms are reaping the rewards of the economy while ignoring the needs of low-income families. In general, the expectation is that the more money a corporate law firm makes, the more free time it gives away (because it can afford to do more to help the community that made its success possible). But that’s not happening in Texas.

Believe it or not, the amount of pro bono work in Texas has actually gone down.

There are over 103,000 lawyers licensed to practice in Texas, but even they might not be enough to make up for the increased demand. The greatest need is in veteran law and family law, but not enough are practicing in those niches or providing pro bono work.

The situation is so bad that the government is getting involved. Texas Supreme Court Chief Justice Nathan Hecht has joined with general counsel from companies in the state to find a solution.

Hecht said, “It really is dire. We have lots and lots of people in our society who are unproductive because they have unmet legal needs.”

It should be noted that Hecht is one of the most conservative, pro-business justices in the state — and even he knows when it’s time to intervene.

Sadly, The Texas Lawbook reported that only 6 in 50 law firms said they increased the amount of pro bono work from 2017 to 2018, while 8 in 50 law firms said their lawyers did more than 40 hours of pro bono work over that same period. All those who were asked agreed that the change needs to begin with corporate entities who are doing less pro bono work instead of more. 

“Yes,” Hecht said. “The situation is dire and it is now physically impossible for the legal profession to meet the need.”

Texas routinely ranks among the bottom five states when it comes to doing just that. This is in large part because of the changing dynamic — the prices charged by law firms are going way up while the need for those lawyers simultaneously increases just as much. The consequences of this dynamic are only going to get worse.

Hawaii Looking For Pro Bono Lawyers Willing To Go The Extra Mile

The lack of attorneys living in Hawaii who are willing to allocate pro bono hours to those in need is having a detrimental effect on those asylum-seeking immigrants, officials said earlier last week. According to Hawaii Public Radio, there are at least 150 asylum seekers from Central America who have made it all the way to Hawaii — after all, why go to California or Texas when you can be assimilated into an even nicer state?

But then again, pro bono lawyers are swarming the United States border with Mexico to ensure that migrants’ rights are being protected. But that isn’t the case in Hawaii, said John Egan of the Refugee and Immigration Law Clinic at the University of Hawaii Law School. These migrants from countries like Honduras and Guatemala have limited English-speaking skills, and officials don’t necessarily know what to do with them.

Egan has helped at least a dozen by giving his time pro bono, and we commend him for that.

But more needs to be done for these people, who mostly fled from violence in their home countries. Immigration is nothing new for Hawaii residents, almost one in five of whom immigrated from other countries themselves. In fact, the vast majority of the state population is made up of either immigrants, or children whose parents were immigrants. 

The vast majority of Hawaii’s immigrant population hails from the Philippines (nearly half of the state’s immigrants), while most of the rest are from China, Korea, Japan, and Vietnam. Most immigrants living in Hawaii are now naturalized. But there are also a number of undocumented individuals living in the state as well. 45,000 people, at least (18 percent of the total immigrant population).

At least 300 individuals who qualified for Deferred Action for Childhood Arrivals (DACA) benefits are now residents of Hawaii. 

Over the past few years, Hawaii’s population has stabilized (after growing by about 100,000 people since 2010) and even started to decline. This trend has led to widespread concern that Hawaii will turn into the next Puerto Rico, a United States territory that has seen is population plummet in the wake of increasingly devastating natural disasters. These trends are at least in part due to lower rates of legal immigration — which is the direct result of a Trump presidency.

Another reason is due to past residents simply moving away (most college-aged kids and senior citizens). This is likely because of the skyrocketing cost of living. It’s also another good reason why we should be fighting hard to help asylum-seeking migrants and other immigrants who want to move to Hawaii — we need them, if for no other reason than to help stabilize the economy!

Do Texas Attorneys Do Pro Bono Work?

Pro bono services exist because people cannot always afford the help they need. It’s not fair that the poor are so disproportionately affected by our broken legal system. According to the Texas Access to Justice Commission, nearly 80 percent of those who qualify for programs relating to civil legal services do not get help. Public defenders don’t always do the job.

Did you know that about 2.5 million hours of pro bono time are logged in Texas every year? There are benefits for lawyers who give up their time, but most who do so admit that they feel good about it. That leaves the question: how does someone find a pro bono attorney?

The best way to find out if a lawyer volunteers to work pro bono is to ask. A Houston criminal defense lawyer who asked to remain anonymous said, “We always like to help out when someone can’t afford our services, but at the same time — we like to be paid. We can’t volunteer all our time. We’d never pay off our education, were that the case. Sad, but true. But I like when people show the initiative to pitch their own case and why I should take it pro bono before I make that pitch better for the judge or jury.”

There are even pro bono services available to refugees seeking asylum at the southern border with Mexico. This is necessary because President Trump has attempted to amend regulations to ban most of the refugees from coming into the country. 

A number of organizations devoted to providing legal aid and humanitarian services at the border include: the South Texas Pro Bono Asylum Representation Project (ProBAR), the Border Network for Human Rights, the Hope Border Institute, the Refugee and Immigrant Center for Education and Legal Services (RAICES), Al Otro Lado, and Las Americas Immigrant Advocacy Center.

The services aren’t only available for the sake of the refugees — they’re also available for the sake of people who are ignorant of the historical context of the situation at the border. Most of these organizations have made it a priority to shed light on what is really happening in places like El Paso so that the Trump administration cannot continue to sweep it under the rug. The sharing of information is crucial to this fight.

Additional information about pro bono services available to Texas citizens can be found by contacting the State Bar of Texas at 1-800-204-2222.

Are There Enough Pro Bono Attorneys To Fill The Gap In Wealth Inequality?

We most often hear about it described as wealth inequality or the 1 percent versus the 99 percent — the vast gap between rich and poor. But in the legal world, we sometimes call it the justice gap. A similarly titled report found that nearly 86 percent of American citizens’ problems go unaddressed even though a firm legal basis can help resolve them. Why is this the case? Because those American citizens are poor. 

The low-income sector is diverse in its demographics: it includes vets, the disabled, senior citizens, single mothers and fathers, etc. 

They all have different legal worries they would like to see resolved. Some are experiencing trouble finding adequate housing for their families. Others are the victims of domestic violence. Many simply require financial help from their ex-spouses or even the government. They require child support, disability benefits, or veterans’ benefits to live in relative comfort.

Pro bono attorneys work to address this “Justice Gap.” Legal organizations fight to ensure that there are incentives available for lawyers who work pro bono, but there still aren’t enough — and this problem will likely continue in the foreseeable future due to the still-growing inequality gap. 

One organization is called the Pro Bono Network (or PBN). The PBN has been up and running since 2011, and the number of lawyers at its disposal is still growing.

Another big obstacle in the way of legal resolution for low-income Americans are those lawyers who want to be a part of the solution, but themselves lack the resources to be of any real help. These attorneys are usually on their own, practicing law in small towns without the backing of a big firm. They have options to provide services online of course, but this is hardly the ideal way to go about it. 

For those lawyers who are interested in making a difference with PBN and live in the Cook or DuPage counties of Illinois, you can check in with Executive Director Linda Rio to find out when the next training or information seminar is scheduled to take place.

Haven’t made up your mind? Remember this: it isn’t just about whether or not someone has the money to hire a good lawyer. How the law falls on someone of low means is often decided by whether that person has a lawyer at all. Those who go without will almost always find themselves under the gavel, and often without any real reason — many are innocent of the crimes for which they have been charged, but they are convicted and sentenced all the same.

You can help!