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Nonessential Worker Says Company Violated Pandemic Rules (1)

April 13, 2020, 6:22 PM; Updated: April 13, 2020, 9:03 PM

A private investigations company disregarded the safety of its employees and the public, and violated local health ordinances when it ordered employees to operate as usual during the pandemic, a lawsuit filed in Los Angeles claims.

Brittany Noh, an insurance fraud investigator at Fraud Fighters Inc., was told her position would be terminated if she refused to continue visiting urgent care centers across the county. She ultimately was fired for complying with statewide mandates, the suit says.

California Gov. Gavin Newsom (D) issued a stay-at-home order for the state in mid-March, mandating all California residents to stay home, with the exception of those who provided essential services. Noh worked for Fraud Fighters Inc. in Los Angeles at the time, and didn’t qualify as an essential employee, the suit says.

“An employee should not have to choose between their health and their job,” Noh’s attorney Chris Taylor told Bloomberg Law. “Unfortunately, this case isn’t unique. The reason we filed it fast is we thought it would signal to other employers that this type of behavior is illegal.”

State governments have issued orders in response to the threat of Covid-19, similar to California’s order, to tamp down on the spread of the virus. Federal guidelines allow states to decide on essential businesses, which has included grocery store workers, farmers, law enforcement, and health-care workers.

‘Gray Area’

It will be difficult for at-will employees to bring claims against their employers, said Rosemarie Cipparulo, a labor and employment lawyer at the Rutgers School of Management and Labor Relations. She said workers can file complaints to their states and the Occupational Safety and Health Administration, claiming they were forced into an unsafe working environment.

Typically, though, it’s easier for workers represented by a union to negotiate such concerns.

OSHA hasn’t enacted an emergency rule to guard against on-the-job transmission of the novel coronavirus. The “general duty clause” of the Occupational Safety and Health Act of 1970 requires only that employers provide workers with “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

“There’s not always a lot a worker can do,” Cipparulo said. “This is a really gray area.”

Management at Fraud Fighters Inc. allegedly told employees in Los Angeles that they would continue to operate as normal, and would continue public surveillance activities, part of their process for debunking employee insurance claims. Employees were told that if they refused to continue their work in public, they would go without pay, according to the suit.

Noh believed she would be exposed to extreme danger if forced to continue investigations operations in public, and on multiple occasions offered to work from home, within the bounds of state and local government orders, while self-quarantining. She was also concerned that she might be infected, and didn’t want to spread the virus, the suit says.

Noh’s employment was allegedly terminated without warning at the end of March, after she emailed management to state she wouldn’t be conducting visits to urgent care centers. Doing so would violate state and local health orders, and would place herself and others at risk, she told Fraud Fighters, according to the suit.

Following the email, her employee accounts and logins were terminated, the suit says. The next day, she received an email alerting her that she no longer worked for the agency, according to the suit.

Causes of Action: Wrongful termination in violation of public policy; violation of Cal. Labor Code § 1102.5; violation of Cal. Labor Code § 232.5; violation of Cal. Labor Code § 6310.

Relief: Losses; statutory penalties; general damages; special damages; attorney’s fees; punitive and exemplary damages; prejudgment interest; declaratory relief.

Response: Fraud Fighters Inc. didn’t immediately respond to a request for comment.

Attorneys: Taylor Labor Law PC represents Brittany Noh.

For additional legal resources, visit Bloomberg Law In Focus: Coronavirus. (Bloomberg Law Subscription).

The case is Noh v. Fraud Fighters Inc., Cal. Super. Ct., no. 20STCV14030, 4/10/20.

(Updated with additional reporting throughout and attorney comments in fourth and sixth paragraphs.)

To contact the reporters on this story: Maeve Allsup in San Francisco at mallsup@bloomberglaw.com; Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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