Tuesday, March 10, 2020

And Then Came the Lawsuits: Pandemic in a Litigious Society

This is the upside of hyper-litigiousness: prevention is prioritized as the most effective means of limiting future liability.
Never mind prevention or vaccines; the big question is "who can we sue after this blows over to rake in millions of dollars?" Yes, this is pathetic, tragic, perverse and evil, but that's reality in a hyper-litigious society like the U.S.
Many people are struck by the apparent over-reaction of Corporate America to the Covid-19 threat, but this is the only rational response in a hyper-litigious society: the number one priority in a hyper-litigious society is to limit liability. Everything--and yes, we mean everything--flows from this obsessive concern with limiting future liability.
Imagine the lawsuit brought by an employee of Corporate America who could have worked from home but was ordered by her employer to come to the workplace, and who was subsequently infected by the virus.
The corporation's defense team would naturally claim there was no evidence the employee caught the virus at work, but alas, one employee in the building was confirmed as a carrier of Covid-19, so that defense won't work: the employee could have been infected by this other employee in the workplace, and lacking any solid evidence to the contrary, it's clear the company failed to protect its employees from exposure to the virus by forcing employees to work in a virus-infected work place when they could have worked from home.
By forcing an employee who could have worked from home to come to the office, the company is liable for damages. Multiply this case by thousands, and it's easy to see why Corporate America has proactively moved so aggressively to a "work at home" policy and why corporate legal, HR and risk management teams are quickly issuing press releases and internal memos stressing all the measures the company is taking to lower the risks for employees and customers.
Future court cases will likely come down to basic tests, such as: did the corporation act promptly, prudently and in good faith? Did it pursue its preventative policies rigorously, or in a piecemeal, slapdash manner? Did the management quickly correct flawed execution, or did management fail to provide the necessary oversight, accountability and problem-solving to address the flawed execution of preventative measures? Did the company follow accepted industry protocols and standards? Did it make every available practical effort to reduce the risks to employees and customers?
If the measures are practical, coherent and applied consistently, this is a good thing. In prevention against a highly contagious virus, half-measures and window-dressing will not be effective: the execution of preventative measures must be 100%.
Thus it would be prudent to instruct all employees to wear masks, wash their hands often, conduct digital-online meetings, limit company gatherings, hire crews to regularly disinfect company facilities, etc. Companies that fail to impose and promote preventative policies and execute preventative measures uniformly will be opening Pandora's Door to lawsuits that could stretch on for years.
This is the upside of hyper-litigiousness: prevention is prioritized as the most effective means of limiting future liability. The downside--extortionist lawsuits seeking quick out-of-court settlements as the cheaper way out of costly litigation--is an ugly reality of conducting commerce in America. But the upside--practical preventative policies that impose "social distancing" and high standards of personal hygiene and the regular disinfecting of common areas--could have a profound impact in lowering the spread of the virus.
Money and Work Unchained $6.95 (Kindle), $15 (print) Read the first section for free (PDF).


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