Legal – Page 10 – Workforce

May 12, 2020June 29, 2023

You have every right to be a 𝘤𝘰𝘷𝘪𝘥𝘪𝘰𝘵, and we have every right to fire you for it

termination, covidiot, workplace violence, gun, weapon

“Covidiot: A person who acts like an irresponsible idiot during the COVID-19 pandemic, ignoring common sense, decency, science, and professional advice leading to the further spread of the virus and needless deaths of thousands.”

A Dallas law firm has terminated the employment of a document services manager after it discovered his threatening, offensive, racist and very public Facebook post taking issue with mandatory face masks.

“No more masks. Any business that tells me to put on a mask (Whole Foods on Lomo Alto) in Dallas will get told to kiss my Corona ass and will lose my business forever. It’s time to stop this BULLSHIT. Do I have to show the lame security guard outside of a ghetto store my CV19 test results? I will show him my Glock 21 shooting range results. With Hornady hollow points. Pricey ammo, but worth it in this situation. They have reached the limit. I have more power than they do…..they just don’t know it yet.”

Bain’s post, which any reasonable person would interpret as just plain wrong, resulted in his termination. As my friend Eric Meyer pointed out yesterday (borrowing from a comment on the Facebook page of Bain’s former employer): “Freedom of speech doesn’t mean freedom from consequences for that speech.”

In other words, you have the right to your opinion, no matter how offensive. But once you share that opinion publicly, we have the right to fire you for it … coronavirus or no coronavirus.

COVID-19 might have temporarily upended our world, but just cause for termination is still just cause for termination. So please don’t be a covidiot. Employers don’t like firing people under the best of circumstances. We especially don’t like doing so now. But we will if we have to.

May 4, 2020June 29, 2023

HR needs to build employee trust to address sexual harassment

sexual harassment prevention requirements

While the #MeToo movement has brought some high-profile results including the imprisonment of Harvey Weinstein and Bill Cosby, the reality is that in general there have been few consequences for harassers.

This is especially true for populations of employees especially vulnerable to sexual harassment, including low-wage workers in the retail and service industries. Looking at data from 1995 to 2016, the Equal Employment Opportunity Commission received more complaints of sexual harassment from the restaurant industry than from any other industry, according to Time. Retail employees, meanwhile, occupy the No. 2 spot in number of sexual harassment complaints filed.

According to digital media company Racked, what makes service workers vulnerable to sexual harassment includes low wages and complicated, ineffective complaint processes that rarely lead to any consequences. Further, harassers know they can prey on vulnerable workers who are often women or people of color because they can use these vulnerabilities against the person they’re harassing and take advantage of a power imbalance, according to Racked.

As rampant as sexual harassment is, offenders often get away with it and victims don’t believe their complaint will go anywhere. Meanwhile, HR may get the reputation of being more interested in protecting the company than protecting the victim.

Fifteen percent of employees have been sexually harassed according to “The State of Humanity at Work,” a spring 2020 report from software company Workhuman, which surveyed 2,613 full-time employees. But that number is probably higher given the sensitivity of the topic, the report noted. Of these people, 39 percent said they don’t trust their HR department. Only 47 percent of women and 66 percent of men who have been sexually harassed reported it.

“This mistrust is further manifested in low numbers of people reporting harassment. Changing these numbers is going to take work building up trust and showing commitment to listening and respect,” according to the report.

What employees can do after being sexually harassed

File a formal complaint: Despite employee concerns that HR will do nothing, filing a formal complaint is still a good idea.

If your company has a specific procedure for handling sexual harassment complaints, employees should follow it to the letter, taking note of every detail, like any time limits set out in that policy, advises law firm Allred, Maroko & Goldberg. In the case where a company has no formal procedure, an employee can start by reporting the harassment to their immediate supervisor, and, in the case where the supervisor is the one doing the harassing, report it to that supervisor’s manager. “It is important, particularly in hostile environment cases, to make sure that your company’s management knows of the harassment,” the law firm’s blog noted.

Keep records of everything: If an employee has any uncomfortable incident with their harasser, they can keep a log of times, dates and exactly what the person said or did for reference. They can also note witnesses who may be able to corroborate the incident. When they have digital evidence like texts, emails or instant messages to screenshot, that is further evidence to bring to HR with their complaint.

Being thorough and detailed is important here. The more details and evidence someone has, the better.

Further steps an employee can take: Sometimes a harassment victim is unable to resolve your harassment complaint by using your employer’s internal procedures, the law firm blog noted. If they still want to pursue the complaint, they can turn to the Equal Employment Opportunity Commission or their state’s human rights or civil rights enforcement agency next.

This can lead to several outcomes. The agency may decide not to proceed with the complaint but issue the victim a “right to sue” notice, allowing them to bring the case to court. The agency may also choose to file their own lawsuit against the employer.

A lawsuit is not the route an employer wants to take. That’s one reason it’s important to HR to step up and take sexual harassment cases more seriously.

“HR is like the CIA — when we do the right thing (like getting rid of a harasser) employees might never know about it, but when we screw up (like protecting a harasser), everyone knows,” said Kate Bischoff, an employment attorney at tHRive Law & Consulting LLC. This only magnifies the reputation of HR as a department that ignores critical culture issues like sexual harassment.

If this is the reputation of HR — and at times it is the reputation HR departments have earned, Bischoff said — then HR professionals must work harder to build trust with employees. They can get to know employees, ask them how they’re doing and find out what HR can do to help with any issues they’re having.

Building these relationships may help people feel like HR is trustworthy and will take sexual harassment seriously.

HR’s role in building employee trust

“The best way to build a connection with employees is to create a human-centered culture. Leaders can do this by keeping the line of communication open and providing frequent check-ins,” Bischoff said. “[And] good HR professionals build trust and take action to prevent and stop harassment.”

The report stressed the importance of a “human workplace,” defined as an environment where people are allowed to be human, make mistakes and treat each other with empathy, Bischoff said. “If we see each other as humans, we’re more likely to speak up when things are not right, when there are problems, and when we believe we’ve been harassed,” she added.

Not addressing sexual harassment has a clear negative impact on employees, but it can also adversely affect employers through turnover. Of the 21 percent of employees who are actively looking for a new job, 33 percent have been sexually harassed at work, according to the survey. This number is probably higher, the survey stated.

The “lawyerly” reason organizations should take sexual harassment more seriously is because of the risks they face due to bad press, lawsuits, charges of discrimination and the costs of settlement. But there’s much more to consider than reputational and financial damage. “Good organizations hear the lawyerly response more clearly, but great organizations hear the human response more clearly,” Bischoff said.

When sexual harassment occurs, a company is not providing an environment for employees in which they can do their best work and voice their concerns, she said. The company is treating their employees poorly, and it’s not providing the best services or products to its clients and customers as well.

The Workhuman report found that of the women who reported being sexually harassed, 29 percent did not get their claim investigated, Of the men reporting sexual harassment, 12 percent did not get their claim investigated.

This may also contribute to mistrust in HR, Bischoff said. “There’s no good reason for harassment not to be investigated,” Bischoff said. “Serious allegations of harassment should always be investigated.”

May 4, 2020June 29, 2023

Labor compliance software sorts through complex legal issues

Labor compliance software is an innovative way to manage the overwhelming alphabet soup of laws, regulations and agencies that govern the workplace.

HR practitioners must recognize the regulatory distinctions of the FMLA and FLSA and navigate the nuances between the ADA and ADAAA. What are the latest regulations surrounding the ACA? Can a misstep with COBRA come back to bite them? And SOX … is that a professional baseball team or a law protecting corporate whistleblowers?

If assessing guidance from agencies including OSHA, DOL and EEOC wasn’t enough to cope with, labor compliance software is a must-have now as the coronavirus invades organizational policies. HR leaders and corporate counsel must quickly familiarize themselves and understand the implications of implementing workplace laws surrounding a new bowl of alphabet soup — PPP, FFCRA and the CARES Act.

The value of labor compliance software

Maintaining corporate compliance with government regulations isn’t easy. Besides knowing what agencies actually do and how regulations affect employers, labor laws are dense, complex and confusing. A single unintentional compliance misstep by an organization can lead to a costly and time-consuming lawsuit with the potential to disrupt or even bankrupt a small, growing organization.

Compliance solutions allow organizations to avoid a trip to court and more easily comprehend constantly changing federal, state and local legislation. Employers can disseminate policies to employees, provide guidelines for regulatory enforcement and manage confidential documents all while saving money by easing time-consuming, onerous reporting rules.

Workforce management systems typically assist with traditional compliance issues while a specialized compliance solution takes employers beyond the basics and provides expert guidance on critical regulations. It can be like having a team of legal experts at your fingertips with minimal expense.

Labor compliance software also allows businesses to communicate company and legislative policies to their employees.

Key areas for compliance software

Regulatory software helps an HR department remain in compliance across all organizational departments. According to peer-to-peer software review site G2, there are business functions and the germane laws that can be undertaken by labor compliance software:

Benefits — Affordable Care Act (ACA); Consolidated Omnibus Budget Reconciliation Act (COBRA); Health Insurance Portability and Accountability Act (HIPAA); Genetic Information Nondiscrimination Act (GINA); Fair Labor Standards Act (FLSA); Family and Medical Leave Act (FMLA).

COVID-19-related policies — Coronavirus Aid, Relief, and Economic Security Act (CARES Act); Families First Coronavirus Response Act (FFCRA) and Payment Protection Program (PPP).

Labor and employment relations — Labor union updates (AFL-CIO, AFGE, SEIU, etc.); Department of Labor (DOL); Equal Employment Opportunity Commission (EEOC); National Labor Relations Board (NLRB); Office of Federal Contract Compliance Programs (OFCCP).

Payroll — Fair Labor Standards Act (FLSA); Federal Insurance Contributions Act (FICA); Federal Unemployment Tax Act (FUTA); Sarbanes-Oxley Act (SOX).

Risk — Employee safety is a top priority for all organizations. Compliance software can manage and track guidance and enforcement by the Occupational Safety and Health Administration (OSHA).

Companies needing compliance software

No organization is immune from U.S., state and local labor laws. True, regulations often vary depending on factors including employee count. A four-person mom-and-pop shop does not face the same labor compliance regulations as a multinational company.

Yet it is crucial that company policies remain up to date and comply with changes in legislation. Despite the expense a lawsuit can present, many smaller organizations are hesitant to call on legal resources simply based on costs. Those concerns can be streamlined by compliance software.

Small companies have difficulty keeping up with changes in compliance because they lack the manpower, and HR departments are already stretched thin or responsibilities are divided among employees as collateral duty. There is no point person to track and update compliance regulations.

Compliance is particularly crucial to navigating the maze of workplace issues. Municipalities and some states have instituted fair workweek policies in the past two years with more on the horizon.

In the wake of the #MeToo movement, mandatory sexual harassment prevention training is compulsory in six states. Compliance training, employee handbooks and more can be structured and simplified with a compliance solution.

Small and midsize organizations in particular have difficulty keeping up with HR compliance regulations as new legislation is continually introduced. When the HR team is small (or even just one person), their bandwidth quickly becomes strained.

Sorting through the alphabet soup of labor regulations can be an eye-glazing exercise for employers. Labor compliance software helps them to spell out attractive cost-savings, easy-to-use solutions and avoid unintentional noncompliance.

April 29, 2020June 29, 2023

Ohio governor’s explanation why masks are only recommended falls woefully short

essential workers; workers' compensation, mask

I tuned in April 28 to Ohio Gov. DeWine’s briefing to learn why Ohio had changed its stance on face masks and coverings from “mandatory” to “recommended best practice.” His explanation falls way short.

The governor offered two explanations, both based on feedback he received from constituents in the hours after his original pronouncement.

Masks are offensive to some, who don’t like the government telling them what to do.
Masks can be problematic for people with disabilities.

The answer to point No. 2 is as easy as three letters: A-D-A. The ADA allows employers to modify work rules as a reasonable accommodation for an employee’s disability. If a mask or face covering causes an issue for someone with a disability, the solution is to offer that individual an accommodation.

Maybe you segregate the employee so he or she does not come into contact with anyone else. Maybe you permit that employee to work from home. Maybe you grant a leave of absence until the risk abates. The point is that the employer and the employee have options other than the state modifying a rule that puts everyone at a greater risk of infection.

Which brings me to point No. 1. The governor said, “I understand some people may find that offensive, the government telling you what to.” Yet, if I’m choosing between offending some people and safety, I’m choosing safety 10 times out of 10. As I pointed out yesterday, everyone wearing masks or facial coverings reduces the risk of transmissions and infection down to a virtual zero.

Models show that if 80 percent of people wear masks that are 60 percent effective, easily achievable with cloth, we can get to an effective R0 of less than one. That’s enough to halt the spread of the disease.

One of the things we absolutely must do to combat the spread of COVID-19 is to wear masks or other facial coverings when at work or in public. While there are studies that question the ability of masks to protect people from the virus, we are not wearing masks to protect ourselves from catching COVID-19.

We are wearing them to protect others from us spreading COVID-19 to them. Thus, if everyone covers their face in public, we will protect everyone by limiting the spread of this virus. It’s just that simple, not difficult to comprehend, and not an affront to personal liberty.

So here’s my bottom line. Anyone who refuses to wear a mask in public because it’s offensive is selfish, thoughtless and doesn’t give a damn about the well being of their fellow humans, period.

I’ll be continuing to wear my mask when around others in public. I sincerely hope that for the well being of all others, you will too.

April 26, 2020June 29, 2023

A coronavirus DOL settlement of a Families First Coronavirus Response Act case

employment law, labor law, overtime records

It did not take long for the Department of Labor to announce its first-ever settlement of a claimed violation of the Families First Coronavirus Response Act.

The DOL’s press release provides the details:

Bear Creek Electrical – an electrical company based in Tucson, Arizona – will pay one employee $1,600 for refusing to provide him sick leave under the newly passed Emergency Paid Sick Leave Act after health care providers ordered him to self-quarantine with potential coronavirus symptoms.
WHD investigators found that Bear Creek Electrical failed to pay the employee for what qualified as paid sick leave covering the hours he spent at home after the company received documentation of his doctor’s instructions to self-quarantine. The employer will pay the employee’s full wages of $20 an hour for 80 hours of leave.… Bear Creek Electrical also agreed to future compliance with the FFCRA, which went into effect on April 1, 2020.
“This case should serve as a signal to others that the U.S. Department of Labor is working to protect employee rights during the coronavirus pandemic,” said Wage and Hour District Director Eric Murray in Phoenix, Arizona.

You’ve been warned. If you are not providing your employees the paid coronavirus leave to which they are entitled, the DOL is watching.

April 23, 2020

Your employees walk out in protest over coronavirus-related working conditions. Now what?

COVID-19, coronavirus, public health crisis

This week, Amazon workers are protesting what they view as unsafe working conditions. 300 workers from 50 facilities will skip their scheduled shift to protest Amazon’s treatment of warehouse workers.

According to United for Respect, the worker rights group organizing the protest, says that the Amazon employees are hoping to accomplish the following.

When an employee tests positive for coronavirus, the immediate notification of all employees at the facility, and the closure of the facility for two weeks with full pay.
Regular and deep cleaning of all facilities, including after a positive test.
The provision of proper safety equipment to all employees, with training on effective use.
14 days of paid sick leave for anyone with symptoms and 12 weeks of emergency paid family leave for employees to care for loved ones who get sick.
Healthcare for all Amazon employees.
Hazard pay, including time-and-a-half during the crisis and childcare pay and subsidies.

Amazon employees are not unionized, and this isn’t a strike. It’s a short-term walkout of non-unionized employees. Just because these employees aren’t unionized, however, doesn’t mean that their walkout isn’t protected. In fact, it’s very protected. The National Labor Relations Act covers employees who engage in protected concerted activity—meaning that employees have the right to talk between and among themselves about terms and conditions of employment, including walking off the job in protest.

Also read: What a business operating in the time of coronavirus cannot look like

An employer’s first instinct might be to fire the instigators (as Amazon is accused of doing). That would be a big mistake. The NLRA protects employees from retaliation after engaging in protected concerted activity. It’s also just a really bad look, especially now.

Instead, I’d view these protests as a wake-up call.

For starters, we know that one or more labor unions are in employees’ ears helping them organize their walk-outs. A mass walk-out could easily lead to a mass walk-in to the nearest NLRB field office to file an election petition. Don’t offer the union more ammo by firing the organizers.

Secondly, this type of protest offers employers an amazing opportunity to heal some wounds. Amazon likely won’t offer these employees each item on their laundry list of demands, but it should consider all of them and offer those that can be accommodated.

These employees just want to feel safe and know that their employer takes their concerns seriously. At the end of the day this is not that big of an ask, and treating it as such only makes the situation worse.

Also read: The rise of the sick, distressed and oppressed worker

Also read: The role of businesses in addressing a public health crisis

March 26, 2020

Coronavirus Update 3-26-2020: A Q&A and the DOL’s FFCRA notice

Yesterday I held my first Zoominar. (Is this an actual word, or did I just make it up?) I opened up my Zoom room for the first 100 people to join and ask any coronavirus-related employment law questions they wanted. I shared #MyQuarantineHaiku (see below), saw some familiar faces, met some new old friends, and answered dozens of questions.

If you weren’t able to join or couldn’t get in, you can watch it here:

Also yesterday, during my Zoominar, the DOL published its required Employee Rights poster for the Families First Coronavirus Response Act. You must post it alongside your other employment law posters no later than April 1, and email it to those employees that are currently working remotely. But you might want to brush up on your PDF editing skills before you do so, because the DOL’s model poster has a big ol’ typo. In describing the paid leave entitlement for employees taking time off to care for children, the DOL lists the maximum dollar cap as $12,000 instead of $10,000. A big mistake, and one we will assume the DOL will fix soon. (Thanks to Eric Meyer for pointing this out to me.) You can also bring it to the DOL’s attention on one of its FFCRA twitter chats, or on the online forum it is hosting.

Two more things. First, I will be hosting another Zoominar this coming Monday, March 30, from 1 – 2 pm. And this time I won’t be caught off guard by the questions about how my daughter’s band, Fake ID, is weathering the coronavirus storm. In fact, she’s promised to join and perform a song for everyone. You’ll be able to access the Zoominar here.

Finally, #MyQuarantineHaiku.

Day-time pajamas

I don’t have hair to pull out

Night-time pajamas

Be well and stay safe. I’ll see everyone tomorrow.

March 25, 2020June 29, 2023

The 5th nominee for the Worst Employer of 2020 is … the coronavirus stimulus snatcher

Can we just close the poll now and announce today’s nominee the winner?

If anyone can verify the identity of this employer I’d love to know who it is.

Alison Green, over at Ask a Manager, provides the truly awful details.

I work in an administrative role at a national restaurant chain.

I just got off of a conference call with corporate in which they told us that if the U.S. government sends us the proposed stimulus checks due to Covid 19, they plan to absorb the money we receive by cutting our hours to reflect that amount. In other words, if each person receives a check for $1,200, $1,200 will effectively go back to the company. Is this legal?

Legal? Yes.*

Morally repugnant and disgustingly reprehensible? Also, yes.

There is no reason (other than flat-out greed and corporate gluttony) to “absorb” an employee’s stimulus check by reducing working hours in a pro-rata amount. It is just the worst, given the current state of health and financial crisis in which we find ourselves.

If you know of an employer doing awful coronavirus-related things to its employees, please let me know by contacting me or by leaving a comment below. I’d like to think that we are better than this, but sadly I know that many are not. And those that aren’t should be held accountable.

* Note: Employers cannot dock the pay of exempt employees for hours not worked in a week without jeopardizing the employee’s exemption, along with the exemption of employees in the same job classification working for the same managers (subject to limited exceptions).

Previous nominees:

The 1st Nominee for the Worst Employer of 2020 Is … the Repeat, Repeat Offender

The 2nd nominee for Worst Employer of 2020 is … the Uncaring Chief

The 3rd nominee for the Worst Employer of 2020 is … the Arresting Retaliator

The 4th nominee for the Worst Employer of 2020 is … the Perverted Peking-duck Purveyor

March 23, 2020June 29, 2023

Frequently Asked Questions about Ohio’s coronavirus ‘stay at home’ order

Effective Monday, March 23 at 11:59 p.m., and continuing through at least April 6, the state of Ohio, via an order of Dr. Amy Acton, director of the Ohio Department of Health, has closed all non-essential businesses to help combat the spread of COVID-19. Gov. DeWine stated that he would reevaluate the April 6 end date as necessary.

These closures are mandatory. A copy of the order is available here.

To help answer your most pressing questions about how this stay at home order impacts your business and your employees, I drafted this FAQ.

Also read: During COVID-19 outbreak, utilize your internal communications in your company crisis plan

For additional information and updates on how coronavirus will continue to impact your business, bookmark workforce.com/news, coronaviruslaw.blog or ohioemployerlawblog.com, or subscribe via RSS or email.

Frequently Asked Questions about Ohio’s stay at home order:

Q: What businesses are open and what businesses are closed?
A: All non-essential businesses in Ohio are closed from March 24 through at least April 6.

Q: What are the “essential businesses” that are permitted to remain open?
A: The Stay at Home Order deems the following 26 categories of businesses as “essential.”

Healthcare and public health operations, human services operations, essential government functions, and essential infrastructure
The critical infrastructure sectors as defined by the Department of Homeland Security
Stores that sell groceries and medicine
Food, beverage, and licensed marijuana production and agriculture
Organizations that provide charitable and social services
Religious entities
Media
First Amendment protected speech
Gas stations and businesses needed for transportation
Financial and insurance institutions
Hardware and supply stores
Critical trades
Mail, post, shipping, logistics, delivery, and pick-up services
Educational institutions
Laundry services
Restaurants for consumption off-premises
Supplies to work from home
Supplies for essential businesses and operations
Transportation
Home-based care and services
Residential facilities and services
Professional services
Manufacture, distribution, and supply chain for critical products and industries
Critical labor union functions
Hotels and motels
Funeral services

Q: We are an “essential business.” What does this mean for us?
A: It means that your physical location is open until further notice, business as usual (as best as can be under the circumstances). Employees who have been diagnosed with coronavirus, who are exhibiting coronavirus-like symptoms, or who have been exposed to coronavirus should remain at home and telework if possible. The State has said that law enforcement should not be stopping people on their way to and from work to confirm the need to travel. Nevertheless, it might not be a bad idea to provide letters to employees documenting the essential nature of the business, just in case. Remember, above all else, despite the essential nature of your business, your employees’ health and safety remain the most important thing.

Register for Jon Hyman’s webinar on Thursday, March 26, “What HR Needs to Know about Coronavirus.”

Q: What social distancing measures must essential businesses follow as a condition to remaining open?
A: Businesses must take the following proactive measures to ensure compliance with social distancing requirements as a condition to remaining open for business:

Designate six-foot distances, with signage, tape, or other means, to ensure six-foot spacing for employees and customers.
Have hand sanitizer and other sanitizing products available for employees and customers.
Implement separate operating hours for elderly and vulnerable customers.
Post online whether a business is open and how best to reach it, and be available to continue services by phone or remotely.

Q: What other actions must all businesses follow regarding the health and welfare of their employees?
A: The Stay at Home Order requires that businesses follow these protocols in managing their employees through this crisis:

Encourage telework and video conferencing when possible.
Actively encourage sick employees to stay home until they are fever-free for 72 hours, symptoms have improved for 72 hours, and at least seven days have passed since the first symptoms began.
Do not require doctors’ notes to validate illnesses or returns to work.
Ensure that sick leave policies are up to date, flexible, and non-punitive to allow sick employees to stay home or non-sick employees to stay home to care for others who are sick.
Separate employees who appear to have acute respiratory illness and send them home immediately.
Reinforce key health and hygiene messages such as staying home when sick, washing ones hands, and proper cough and sneeze etiquette, including hanging posters and providing protection supplies and no-touch receptacles.
Perform frequent enhanced environmental cleanings.
Be prepared to change business practices if needed to maintain critical operations.

Q: Are there any instances in which a “non-essential business” can operate?
A: Non-essential businesses can maintain “minimum basic operations.” As long as employees comply with the above social distancing requirements, non-essential businesses can still engage in the minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, facilitate employees to be able to continue to work remotely from their residences, or for related functions.

Q: We are a “non-essential business.” How do we handle our employees in response to this Stay at Home Order?
A: There are myriad questions for non-essential businesses to answer to try to remain open and as operational as possible.

1. Communication is key. Your employees are worried and scared. Talking to them in person, remotely, or by email is crucial so that they understand what is happening to their jobs.
2. The Stay at Home Order closes physical places of business that are non-essential, but it does not prohibit the employees of those businesses to work remotely from home.
3. Wage and hour laws still apply. If employees of non-essential employers are working during the shut-down (i.e., remotely) they must be paid. For hourly workers, this means their regular hourly rate for all hours worked, and time-and-a-half for any overtime after 40 hours worked during the week. For salaried exempt employees, this means their full weekly salary for any week in which they work for even one minute. If employees are not working, then they do not have to be paid, and they would be free to apply for unemployment benefits. It is, however, within a company’s discretion and means to continue paying non-working employees during this shutdown of non-essential businesses.
4. If you have to cut headcount, you should be furloughing people or laying them off. A furlough is a temporary, short-term layoff with an expectation of recall in the near future. Employees remain on payroll, just with no assigned hours. A layoff is usually of longer duration or permanent and results in the employee’s removal from payroll. This is largely a business decision, not a legal decision. Depending on the terms of an employer’s group health plan, a furlough may permit employees to remain covered. In that case, employers will have to determine how to cover an employee’s share of premiums. A layoff is typically a triggering event for COBRA coverage. If either triggers COBRA, those premiums are typically an employee’s responsibility to pay in full, although employers that are able to do so can choose to pay COBRA premiums for as many months as possible.
5. Employees who are not working during this shutdown can apply for unemployment from the state. Employers should encouraging non-working employees to apply for these benefits as soon as possible. This should not hurt the employer’s experience or unemployment rating.
6. Do not forget about paid sick leave and family leave under the Families First Coronavirus Response Act, which takes effect on April 2, 2020. Employees who have been laid off prior to April 2 will not qualify for this emergency paid leave. It is an open issue whether employees who have been furloughed or ordered by the government to stay at home will qualify. The Act provides up to 80 hours of paid sick leave at 100 percent of an employee’s regular rate of pay to employees “subject to a … State … quarantine or isolation order related to COVID-19.” One could interpret the Stay at Home Order as imposing a “State quarantine or isolation order” because it prohibits employees of a non-essential business from working at the business’s physical location. One could also interpret the Order as not imposing a “State quarantine or isolation order” because it has not required employees of non-essential employers to stay at home, but merely closed the physical locations at which they work. I believe the latter interpretation is more reasonable until the state, local, or federal government imposes a broader stay-at-home or quarantine order. Regardless, the Families First Coronavirus Response Act is a floor, not a ceiling, and employers are always able to offer more paid leave benefits than the law requires if they are able and willing to do so.

Q: We have a labor union. Are there any other issues we need to be thinking about?
A: Yes. If a collective bargaining agreement covers any of your employees, you have additional things to think about, including layoffs, recall, bumping, seniority, and super-seniority. Collective bargaining agreements can also have their own provisions for sick leave, PTO, vacation, and severance. If you are thinking of changing these benefits, you may need to first bargain with the union.

COVID-19 is rapidly changing how businesses operate. We recognize that organizations need an extra helping hand right now. So we’re offering our platform for free to new sign-ups over the coming months. Sign up today and our Workforce Success team will gladly provide a personal, online walkthrough of our platform to help you get started.

March 22, 2020June 29, 2023

Treasury, IRS and Labor announce plan to implement Coronavirus-related paid leave for workers and tax credits for businesses

COVID-19 is rapidly changing how businesses operate. We recognize that organizations need an extra helping hand right now. So we’re offering our GPS clock in tool for free to new sign-ups over the coming months. Sign up today and our Workforce Success team will provide a personal, online walkthrough of our platform to help you get started. It can be fully deployed in 1-2 days.

The Department of Treasury, the Department of Labor, and the IRS announced impending regulations that will help covered businesses navigate the paid family and sick leave provisions of the Families First Coronavirus Response Act, including available tax credits, the small employer exemption, and a 30-day non-enforcement grace period.

Refresher: What Leave Does the Act Provide?

The Act provides that eligible employees of covered employees can receive:

1. Up to 80 hours of paid sick leave at 100 percent of the employee’s regular rate pay where the employee is unable to work because the employee is quarantined, and/or experiencing COVID-19 symptoms, and seeking a medical diagnosis, capped per employee at $511 per day and $5,110 in total;

2. Up to 80 hours of paid sick leave at two-thirds of the employee’s regular rate of pay where the employee is unable to work because of a need to care for an individual subject to quarantine, to care for a child whose school is closed or child care provider is unavailable for reasons related to COVID-19, and/or the employee is experiencing substantially similar conditions as specified by the U.S. Department of Health and Human Services, capped per employee at $200 per day and $2,000 in total; and

3. Up to an additional ten weeks of expanded paid family and medical leave at two-thirds of the employee’s regular rate of pay when the employee is unable to work because of a need to care for a child whose school is closed, or child care provider is unavailable for reasons related to COVID-19, capped per employee at $200 per day and $2,000 in total.

Paid Leave Tax Credits

The Act makes available the following tax credits to help employers pay for this paid sick and family leave:

1. For an employee who is unable to work because of Coronavirus quarantine or self-quarantine, or has Coronavirus symptoms and is seeking a medical diagnosis, eligible employers may receive a tax credit up to $511 per day and $5,110 in the aggregate, for a total of 10 days.

2. For an employee who is caring for someone with Coronavirus, or is caring for a child because the child’s school or child care facility is closed, or the child care provider is unavailable due to the Coronavirus, eligible employers may claim a tax credit for two-thirds of the employee’s regular rate of pay, up to $200 per day and $2,000 in the aggregate, for up to 10 days.

3. In addition to the sick leave credit, for an employee who is unable to work because of a need to care for a child whose school or child care facility is closed or whose child care provider is unavailable due to the Coronavirus, eligible employers may receive a refundable child care leave credit. This credit is equal to two-thirds of the employee’s regular rate of pay, capped at $200 per day or $10,000 in the aggregate, for up to 10 weeks.

4. Eligible employers are entitled to an additional tax credit determined based on costs to maintain health insurance coverage for eligible employees during the leave period.

Eligible employers who pay qualifying sick or child care leave will be able to retain an amount of the federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes equal to the amount of qualifying sick and child care leave that they paid, instead of depositing them with the IRS.

If there are not sufficient payroll taxes to cover the cost of qualified sick and child care leave paid, employers will be able file a request with the IRS for an accelerated payment. The IRS expects to process these requests in two weeks or less, with further guidance on this issue coming in the next two weeks.

Examples

1. An eligible employer pays $5,000 in sick leave and is otherwise required to deposit $8,000 in payroll taxes, including employee withholdings. The employer is entitled to use up to $5,000 of the $8,000 of taxes it was going to deposit for making qualified leave payments. The employer would only be required to deposit the remaining $3,000 with the IRS on its next regular deposit date.

2. An eligible employer pays $10,000 in sick leave and is required to deposit $8,000 in payroll taxes. The employer could use the entire $8,000 of taxes to make qualified leave payments and file a request for an accelerated credit for the remaining $2,000.

Small Business Exemption

Businesses with less than 50 employees will be eligible for an exemption from the leave requirements relating to school closings or child care unavailability, provided that the employer can show that compliance would jeopardize the ability of the business to continue. The DOL will be providing emergency guidance establishing simple and clear criteria defining the circumstances that will meet the criteria of jeopardy to the viability of an employer’s business as a going concern.

Non-Enforcement Period

The DOL will be issuing a temporary non-enforcement policy. Under the policy, the DOL will not enforce the Act until May 2, 2020 (30 days after its effective date), against employers that have acted reasonably and in good faith to comply.

I continue to monitor these issues in real-time and will be posting updates here as warranted. If you have any questions, feel free to contact me directly.