Agency Guidance May Not Be Enough: Keeping Workers Safe and Avoiding Employer Workplace Liability During the COVID-19 Pandemic

SAMUEL ESTREICHER, ELISABETH CAMPBELL

NYU law professor Samuel Estreicher and 2L Elisabeth H. Campbell describe the wide array of laws that will need to come into play to keep workers safe and avoid employer liability as workplaces consider reopening amid the COVID-19 pandemic, cautioning that compliance will not necessarily relieve employers of the risk of litigation and liability. Estreicher and Campbell discuss applicable recommendations, guidelines, and requirements set forth by such agencies as the U.S. Department of Labor, which is responsible for administering the federal Occupational Safety and Health Act (OSHA), the Centers for Disease Control and Prevention (CDC), and the Equal Opportunity Employment Commission (EEOC).

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United States v. Roberts

Docket: 19-1176

Opinion Date: May 1, 2020

Judge: Steven M. Colloton

Areas of Law: Criminal Law

The Eighth Circuit vacated defendant's sentence imposed after he pleaded guilty to unlawful possession of a firearm as a previously convicted felon. The court held that, although the district court properly applied a four-level increase for possession of a firearm "in connection with another felony offense" under USSG 2K2.1(b)(6)(B), but that a two-level increase for "using a minor to commit a crime" under USSG 3B1.4 should not have applied. In this case, the evidence showed only that defendant engaged in an arm's-length transaction with a minor. The court held that this mere joint participation in an offense as a partner, does not amount to "use" of a minor "to commit the offense" of unlawful possession of a firearm by a felon. Accordingly, the court remanded for resentencing.

Hall v. BNSF Railway Co.

Docket: 18-3126

Opinion Date: May 1, 2020

Judge: Kobes

Areas of Law: Labor & Employment Law

The Eighth Circuit affirmed the district court's denial of plaintiff's motion for a new trial in an action seeking damages under the Federal Employers' Liability Act, and rejected his contention that the district court abused its discretion by refusing to provide the jury with a specific damages instruction. The court held that the district court did not abuse its discretion by refusing to give a specific instruction based on Eighth Circuit Manual of Model Instruction 15.70's optional list of damages because plaintiff's evidence was insufficient to support a claim of future damages. In this case, the district court's generic instructions permitted plaintiff to present his theory of the case—that BNSF breached a duty it owed to him causing his shoulder injury. Furthermore, the district court's instructions did not impact plaintiff's substantial rights.