By Braden Campbell

Law360 (June 4, 2020, 8:06 PM EDT) -- As millions of workers struggle to navigate overloaded unemployment compensation systems and the web of leave, safety and other workplace rights put in play by the pandemic, many plaintiff-side employment lawyers are shifting their practices to focus more on advice.

Some attorneys are responding to an uptick in cold calls from workers wondering how to oppose unsafe working conditions without losing their jobs, lawyers told Law360. Others are assisting worker advocacy groups or putting out guidance explaining laws and regulations that are difficult enough to decipher for trained lawyers, let alone regular workers with no such background.

"We've been working full time — overtime — on advising employees," said David Blanchard, an attorney with three-person plaintiffs firm Blanchard & Walker PLLC in Michigan. "This stuff is never easy, but it's more complicated because the law is changing by the day and the week."

This sudden influx of advisory work is a change for most plaintiffs attorneys. While management-side employment firms generally dispense equal parts advice and legal representation, attorneys for workers typically spend the bulk of their time vetting prospective clients and pressing workers' claims. But that mix has lately shifted for some. 

Before the COVID-19 pandemic, Blanchard spent about a tenth of his time helping workers with questions unrelated to litigation, he said. Now, he spends 90% of his time dishing out pro bono advice to past clients, workers referred to him by colleagues and others who found him via the internet, he said.

"Virtually everybody has an employment law question right now," said Blanchard, whose email links to a list of coronavirus-related resources. 

Early in the pandemic, most of those questions were about unemployment benefits, Blanchard said. More recently, as nonessential businesses have reopened physical locations and others have taken steps to do so, workers are wondering what will happen if they refuse to work because of safety concerns and what their rights are to take paid leave to care for themselves or loved ones.

Other attorneys and firms have similarly diverted parts of their practices to providing free advice. National plaintiff-side firm HKM Employment Attorneys LLP has a raft of resources for struggling workers, including a lengthy page on its website laying out answers to workers' most common questions about their rights and an email and phone hotline for fielding and answering trickier queries. The firm has also posted recordings of a series of roundtables in which its attorneys flesh out answers to a handful of common questions.

HKM founding attorney Daniel Kalish recalled seeing "a lot of people trying to help in the way they could" when the pandemic exploded in March. For workers' attorneys, that means issuing resources, taking workers' calls or helping them maximize unemployment benefits.

"The plaintiffs bar is trying to do what they can to sort of pass on information," Kalish said. For his firm, the sudden influx of advisory work has meant "a little adjustment," given the nature of plaintiff-side practice. But "it's something we're very comfortable doing," he said.

Groups such as the National Employment Lawyers Association — a professional organization for attorneys who represent workers — and its local chapters are also pitching in. Several members of NELA New York are involved with a New York City Bar Association hotline for workers dealing with issues related to COVID-19, said Miriam Clark, a plaintiffs attorney with Ritz Clark & Ben-Asher LLP in Manhattan and a former NELA NY president. The program is aimed at low-income workers who need help but may not be able to secure full-blown legal representation.

Members have also worked together to digest the stream of coronavirus-related laws, regulations and recommendations, providing feedback to policymakers and helping workers deal with novel challenges. This work hasn't been easy, Clark said.

"We're helping [workers] navigate … these situations that are very new to them, and new to us, frankly," she said.

For example, there are "all sorts of gray areas" in disability law as it relates to COVID-19, she said. State and federal laws entitle disabled workers to accommodations, as long as it isn't too taxing for the company to grant them. But it's unclear whether workers have a right to an accommodation if they aren't disabled themselves but are worried about going to work and passing on the virus to a family member who is, Clark said.

NELA NY has also stepped up its policy advocacy, most notably around New York's whistleblower protections, Clark said. Under New York law, workers fired for speaking out must show they complained about a legal violation that poses "a substantial and specific threat" to public health to prove retaliation. The group is pushing a bill that would protect workers who have a "reasonable belief" they're complaining about a violation or who call out a public health threat that doesn't break the law. This is a much easier bar to clear for cashiers fired after they complain about inadequate protections, Clark said.

Brian East, an attorney with Disability Rights Texas, described an effort by legal services groups in the Lone Star State to divvy up the task of analyzing the federal pandemic relief measures and the agency guidance that followed. His group, along with the Texas-based Equal Justice Center and others, compiled Q&A documents explaining various facets of the laws and have made them available on their websites.

East has also fielded general questions from workers about their rights and helped some workers request telework as a disability accommodation. Some employers have been flexible, while others have been wary about setting a precedent by letting employees work remotely, he said.

"[Our group has been] helping people figure out how to respond to the employer that is obviously really nervous about it and putting all kinds of restrictions on it … just how to navigate that resistance," East said.

These efforts to help workers come as many in the legal industry are themselves struggling. Blanchard, the Michigan attorney, said it has been an administrative hurdle to keep his firm's practice afloat as he and his colleagues have moved to working from home and as regular work has slowed down due to court closures. The pandemic has been "a real challenge for us," he said. 

"On the other hand, we have skills that are really important right now to confront, and help workers confront, these challenges," he said.

--Editing by Jill Coffey and Aaron Pelc.

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