Maria C. Rodriguez

Rodriguez, a McDermott Will & Emery partner, advises domestic and international corporations on employment law compliance issues and on mergers and acquisitions. She also defends employment cases, and she said she foresees a wave of class actions coming amid the Covid-19 pandemic.

"We see plaintiffs' lawyers advertising that if you were laid off you probably have a claim. That's an overstatement, but the cases are going to happen," she said. "The ads talk about not just termination claims but disability-related claims if workers are told to come back. Or they solicit those who are high risk but have not been asked back yet. No cases have been filed so far, but we're hearing about pre-litigation complaints from our employer clients."

Rodriguez also reports an upswing in inquiries from clients well aware of the current climate of protest and racial reckoning. "Clients are responding to social unrest in the wake of the murder of George Floyd," she said. "Of course, Title VII [of the Civil Rights Act of 1964] says you can't have quotas, but you can do planning around diversity and inclusion initiatives."

Readying her clients for what comes next is high on her docket. In May, she and colleagues put together a six-part webinar series on the complexities of Covid-19 employment issues, from reopening obstacles to employee privacy to mitigate litigation risk.

In her pre-coronavirus litigation work, Rodriguez said there's a recent trend toward class actions alleging claims over background checks under the Fair Credit Reporting Act. In one case in which she successfully defended a convenience store chain as much as $200 million was at issue. Limon v. Circle K. Stores Inc., 1:18-cv-01689 (E.D. Cal., filed Dec. 11, 2018).

The class action complaint alleged that the stores unlawfully inserted extraneous provisions into the standard disclosure and authorization forms plaintiffs were required to sign to give consent for background checks, allegedly violating the FCRA.

"Some of us are settling these cases; some of us are litigating," Rodriguez said. "The plaintiff here argued he was confused by the extra language in the forms--at least that's what the complaint said. In taking his deposition, though, he told about issues that had nothing to do with those claims." Rodriguez lost a motion for summary judgment, but filed a successful motion for reconsideration, and won a subsequent summary judgment motion, after a 9th U.S. Circuit Court of Appeals opinion clarified the two-prong test to be applied in such cases. Ruiz v. Shamrock Foods Co., 18-56209 (9th Cir., op. filed March 20, 2020).

"Shamrock confirmed our position," Rodriguez said. "But the plaintiffs have refiled the case in state court. The battle goes on."

-- John Roemer