18th Annual Workplace Class Action Report - 2022 Edition

606 Annual Workplace Class Action Litigation Report: 2022 Edition continued failings on the part of HCDC due to imperfect cleaning and the availability of cleaning supplies; inconsistent enforcement of social distancing, mask, and PPE policies; and the lack of specific protocols relating to medically vulnerable detainees. The Court determined that HCDC had since taken significant steps to mitigate the introduction and spread of COVID-19, including some measures that specifically addressed Plaintiffs’ areas of concern. As for the impermissible punishment claim, the Court opined that Plaintiffs were required to show either: (i) the condition in question was imposed with the express intent to punish; or (ii) it was not reasonably related to a legitimate, non-punitive governmental objective, such that the intent to punish can be inferred. The Court concluded that there was not a high probability of success on this claim as well. Finally, beyond arguing that there was now a high probability of success on the merits, the Court opined that Plaintiffs failed to identify any specific exceptional circumstances warranting bail determinations for all high-risk ICE detainees at this time. For these reasons, the Court denied Plaintiffs’ motion for an expedited bail hearing. Doe, et al. v. Shenandoah Valley Juvenile Center Commission, 2021 U.S. App. LEXIS 40987 (4th Cir. Jan. 12, 2021). Plaintiffs, a group of unaccompanied immigrant children detailed at Shenandoah Valley Juvenile Center, filed a class action alleging that Defendant failed to provide a constitutionally sufficient degree of mental healthcare in violation of 42 U.S.C. § 1983. Plaintiffs fled their native countries due to serious danger and violence, and upon arriving in the United States, fell under the custody of the U.S. Department of Health and Human Service’s Office of Refugee Resettlement (“ORR”). Id. at *3. The ORR subsequently placed Plaintiffs in Defendant’s Virginia facility, which conducted initial mental health interviews and provided Plaintiffs with periodic counseling sessions. Defendant filed a motion for summary judgment on the grounds that it had provided adequate mental healthcare to its residents, and the District Court granted the motion with respect to this issue. Plaintiffs appealed, and the Fourth Circuit reversed the District Court’s holding. Defendant contended that Plaintiffs lacked the requisite redressability aspect under Article III standing because they failed to name the ORR as a Defendant. To the contrary, the Fourth Circuit reasoned that Plaintiffs’ remedies sought ( i.e. , declaratory and injunctive relief requiring Defendant to implement a “trauma-informed” standard of mental healthcare) appropriately focused on Defendant’s services. The Fourth Circuit thus held that Plaintiffs satisfied the necessary standing requirements. Plaintiffs argued that the District Court incorrectly applied the deliberate indifference standard when it should have applied the professional judgment standard. The latter standard provides that “‘liability may be imposed only when the decision by the professional’ represents a ‘substantial departure from accepted professional judgment,’” whereas the former requires a Plaintiff with “an objectively serious medical need” to show that Defendant knew of that need and disregarded it. Id. at *28, 31. In response, Defendant asserted that the deliberate indifference standard applied to this case because: (i) this standard applies to claims of inadequate medical care by pretrial detainees; (ii) Plaintiffs were placed with Defendant for security reasons, not for treatment; and (iii) Defendant’s facility was a juvenile detention center, not a medical facility. The Fourth Circuit rejected these arguments. It held that “a facility caring for an unaccompanied child fails to provide a constitutionally adequate level of mental healthcare if it substantially departs from accepted professional standards.” Id. at *35-36. The Fourth Circuit came to this conclusion by finding that Defendant’s mental health processes currently in place demonstrated its intent to treat children in its care, and that the nature of the facility was of secondary importance to the reason that a person was confined. The Fourth Circuit opined that, by utilizing the improper standard, the District Court failed to construe the record in Plaintiffs’ favor and ignored relevant evidence concerning proper mental healthcare standards for traumatized children such as Plaintiffs. Consequently, the Fourth Circuit reversed the District Court’s grant of summary judgment and remanded for further proceedings. Guam Contractors Association, et al. v. Wilkinson, 2021 U.S. Dist. LEXIS 16455 (D. Guam Jan. 27, 2021). Plaintiffs, a group of businesses regularly employing H-2B visa employees for agricultural positions, filed a class action alleging that Defendants violated the notice and comment procedures of the Administrative Procedures Act (“APA”) by improperly changing the interpretation and application of the "temporary service" requirement of the visa process in which an employer must file an application with U.S. Citizenship and Immigration Services (“USCIS”) outlining the temporary nature and duration of the work. Defendants filed a motion to dismiss, which the Court denied. Plaintiffs alleged that beginning in 2015, the USCIS began to routinely deny Plaintiffs’ H-2B applications for failing to meet the "temporary services" requirement, which resulted in labor shortages. Id. at *3. During the pendency of the action, Congress passed the John S. McCain National Defense Authorization Act for Fiscal Year 2019 ("NDAA FY 19"), which removed the "temporary service or labor" requirement for employers