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On September 11, 2020, the U.S. Department of Labor (DOL) issued a new administrative rule concerning the Families First Coronavirus Response Act (FFCRA), a federal law that provides two forms of COVID-19-related paid time off to employees of businesses with fewer than 500 employees. The rule comes just over a month after a New York federal court rejected substantial portions of the agency’s prior FFCRA guidance in State of New York v. U.S. Department of Labor et al., No. 1:20-cv-03020 (S.D.N.Y. Aug. 3, 2020). And while the new rule does include some revisions based on the court’s critiques, it mostly doubles down on several of the DOL’s prior interpretations of the FFCRA that were rejected by the Court. More particularly, in the new rule, the DOL:

  • Reaffirms that an employee may only take FFCRA leave if the employer has work available for the employee.
  • Reaffirms that intermittent FFCRA leave may only be taken with an employer’s approval.
  • Narrows the definition of the term “health care provider” (although still not as narrowly as that term is defined in other federal statutes).
  • Revises the FFCRA’s documentation requirement to provide that paperwork supporting the need for leave may be given “as soon as practicable” (as opposed to before the leave commences).

The new rule took effect on September 16, 2020 and will remain in place through December 31, 2020, when the FFCRA is set to expire.
Continue Reading DOL doubles-down on FFCRA rules (but amends others) in response to federal court decision

Several labor organizations, along with racial and social justice organizations, conducted a mass walkout on July 20, 2020 to protest racial inequality and working conditions in the United States.  Thousands of workers in more than 200 cities walked off the job on a full-day strike while others who were unable to strike for a full day walked out about for eight minutes.  According to the Strike for Black Lives website, the purpose of the strike was to demand higher wages, better jobs, the right to unionize, and healthcare for all.  These organizations specifically call for corporations to address racism in the workplace, raise wages, provide healthcare, and provide ample personal protective equipment (PPE), among other things.

These types of mass walkouts raise several considerations for employers as they attempt to balance their support for racial and social justice with their tolerance of competing views and their need to maintain operations.  While some employers may allow their employees to participate with little to no disruption to their operations, others, such as hospitals, will have to find ways to continue to run their operations (perhaps by hiring temporary workers) if they find themselves with reduced staff.  Other employers may be forced to temporarily close or take other measures to manage the sudden loss of available employees.
Continue Reading Responding to employee advocacy and workplace walkouts during times of protest

The Department of Labor’s (DOL’s) Wage and Hour Division recently issued three new opinion letters addressing the Fair Labor Standards Act’s (FLSA’s) sales exemptions. Two letters address the outside sales exemption, and the third addresses the retail or service establishment exemption.

FLSA2020-6: Do salespeople who travel to different locations to sell their employers’ products using their employers’ mobile assets qualify for the outside sales exemption?

The first opinion letter, FLSA2020-6, addresses whether salespeople who use “stylized” trucks to travel to high-population areas and events to sell products fall within the outside sales exemption of the FLSA.

Ordinarily, a position will qualify for the exemption only if (a) the employee’s primary duty is “making sales” to or “obtaining orders or contracts for services” from customers; and (b) the employee is “customarily and regularly engaged” in performing duties “away from the employer’s place or places of business.”  29 C.F.R. sections 541.500(a), 541.501, 541.502. The exemption includes not only sales work itself, but also “work performed incidental to and in conjunction with the employee’s own outside sales or solicitations.” 29 C.F.R. section 541.500(b).

In FLSA2020-6, the DOL concluded that the employees satisfy both requirements and are therefore exempt.

Continue Reading Are your sales employees exempt? DOL provides guidance in three new opinion letters

The U.S. Department of Labor, Wage and Hour Division (WHD) recently announced it will no longer automatically pursue pre-litigation liquidated damages from employers.  WHD now takes the position that recovering pre-litigation liquidated damages should only occur in a limited number of cases and it will more selectively pursue such additional recoveries.

WHD issued this new guidance in response to Executive Order 13294.  Per WHD’s announcement, the policy shift represents an effort to help spur economic recovery.  The change also is intended to reduce the time needed to conclude Fair Labor Standards Act (FLSA) administrative cases to facilitate faster payment of back-wages to aggrieved employees.
Continue Reading Pursuit of pre-litigation liquidated damages no longer the DOL’s default policy

With the spike in reported COVID-19 cases in Texas, counties have started to re-impose previous safety measures. As a result, many of the requirements of the “Stay Home, Stay Safe” orders from earlier this year have come back into effect for a second time – highlighting the continuing challenge of COVID-19 workplace compliance.

On the morning of June 19, 2020, Dallas County Judge Clay Jenkins issued a Supplemental Order on Continuing Requirements, which went into effect that night at 11:59 p.m. The order requires all commercial businesses that provide goods or services directly to the public to require all of their employees and visitors to wear a face covering. The face covering requirement is part of a health and safety policy that each business operating in the county must now develop and implement. The order also states that each business’s health and safety policy may also include other mitigating measures such as temperature checks and health screenings. Businesses operating in Dallas must post their health and safety policies in a location sufficient to provide notice to employees and visitors of its requirements. Businesses that fail to comply with the order face a fine of up to $500 per violation.

Continue Reading Face covering requirements reappear overnight for many businesses operating in Texas

Last week, the Paycheck Protection Program Flexibility Act (PPPFA) was signed into law, becoming effective immediately. The PPPFA reforms the Paycheck Protection Program (PPP), which was passed under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, and is intended to improve the terms of PPP loans obtained by small businesses to help cover payroll and other costs during the COVID-19 crisis. Certain aspects of the new law, however, may make it more difficult for some businesses to obtain full loan forgiveness.

Employers who received PPP loans after the CARES Act went into effect as of March 27, 2020, soon ran into challenges. For instance, many found that the eight-week period covered by the loan was not enough to provide the financial relief needed to stay afloat. This was particularly true for employers whose businesses were shut down as a result of state orders. Others faced unavoidable reductions to their loan forgiveness amount under the PPP’s reduction rules, based on an inability to return to pre-pandemic workforce numbers by the PPP’s June 30, 2020, deadline.
Continue Reading PPP Flexibility Act – Stretching forgiveness requirements to benefit employers

The SBA’s latest round of frequently asked questions (FAQs) about the Paycheck Protection Program (PPP) gives employers an important new tool to address one of the biggest challenges of trying to maximize PPP forgiveness: How to respond to employees who refuse to return to work by June 30, 2020.

Loan forgiveness is the cornerstone of the PPP, which was established under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). To protect jobs, the PPP’s offer of loan forgiveness is in part based on an employer’s ability to maintain headcount through the COVID-19 crisis. Specifically, if between February 15, 2020 and April 26, 2020, an employer reduces its employee headcount, then the amount of loan forgiveness will be reduced. If the employer reinstates those employees by June 30, 2020, however, the loan forgiveness amount will not be reduced. Further explanation of the PPP and loan forgiveness reduction calculation can be found here.
Continue Reading Employees refusing to return to work? The SBA offers some protection of PPP forgiveness

As businesses reopen and employees begin returning to work, employers will have to navigate complex wage and hour issues they may have never considered before. Employers will need to adapt to a “new normal” of major workplace changes, including increased teleworking, social distancing, and new health and safety measures.

Wage and hour issues for employees returning to the workplace

Whether an employer must compensate an employee for the time they spend complying with new workplace protocols, like screening and safety measures, will require a fact-intensive, state-specific analysis.  The following are just a sampling of some wage and hour issues employers must consider (under both federal and state laws) as employees start coming back to work:
Continue Reading Wage and hour considerations in the post-COVID-19 era

As employees begin returning to work over the coming weeks, employers will face unique challenges created by the risk of workplace exposure to the coronavirus.  These risks take on an added urgency in a number of states where workers’ compensation coverage may not create an absolute bar to lawsuits related to workplace exposure to COVID-19.  In fact, such lawsuits have already commenced with the April 6, 2020 filing of Toney Evans v. Walmart, Inc., et al., No. 2020-L-003938 in Cook County, Illinois.  This first lawsuit has many employers – quite rightly – worried about whether the tort immunity typically provided by workers’ compensation laws will protect them given the unique nature of the COVID-19 pandemic.  The best response to mitigate this risk will be to conduct a comprehensive review of workplace health and safety practices to help minimize the risk of workplace transmission of COVID-19 while carefully evaluating additional ways to limit exposure as government restrictions subside.
Continue Reading Does workers’ compensation protect employers from liability arising from workplace transmission of COVID-19?

Texas employers who have opted out of workers’ compensation coverage may face significantly increased workplace risks in the weeks and months ahead. All employers will face unique challenges due to the risk of workplace exposure to COVID-19. But, the potential liability from COVID-19 workplace illnesses is particularly problematic for Texas employers who have opted out of the workers’ compensation system. Specifically, Texas employers who have opted out of the workers’ compensation system will not have the benefit of workers’ compensation’s preclusive effects. They face the substantial risk that simple negligence will be enough to support employee claims arising from COVID-19 exposure. As a result, it is imperative for opt-out Texas employers to carefully review and update their workplace health and safety practices to maximize mitigation of any risk of workplace transmission of the coronavirus.
Continue Reading Texas employers who do not participate in workers’ compensation face heightened workplace liability risks as employees return from COVID-19 quarantine