Late yesterday, on April 29, 2020, Florida’s Governor issued his Phase 1: Safe. Smart. Step-by-Step Plan for Florida’s Recovery in Executive Order 20-112 and clarifying FAQs, which will be effective 12:01 a.m. on May 4, 2020, until a new order is issued. Continue reading
As businesses in Florida make decisions on how to move forward during the COVID-19 public health emergency, many businesses are weighing the effects of a layoff or furlough on their employees’ ability to secure unemployment benefits. The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act—which was signed into law the afternoon of March 27, 2020—includes provisions that address these issues. These provisions are referred to as the Relief for Workers Affected by Coronavirus Act.
Before addressing how the CARES Act may temporarily affect unemployment, it is important to understand what steps the State of Florida has already taken. At this stage, Florida has temporary made individuals who have a COVID-19-related unemployment situation eligible for reemployment assistance (the name Florida gives to unemployment benefits). Specifically, under current Florida guidance, the following persons are currently eligible for COVID-19 unemployment benefits:
- People ordered to quarantine by a medical professional
- Those laid off or sent home without pay for an extended period by their employer due to COVID-19
- Those caring for an immediate family member with the virus.
The CARES Act will expand these benefits—presuming, of course, that Florida enters into an agreement with the federal government. Such an agreement is required for each provision in the CARES Act related to unemployment.
If Florida agrees and participates in the expended benefits, below is general summary of what will be available to those whose work has been negatively impacted by the coronavirus:
Federal Pandemic Unemployment Compensation: provides an additional $600 per week in unemployment benefits on top of the maximum benefits an individual may receive (state provided benefits + Pandemic Unemployment Compensation = Total Benefits). These benefits are available to those whose lack of work is tied to COVID-19 up through July 31, 2020.
Pandemic Unemployment Assistance: provides for financial assistance for gig workers, the self employed and contract workers typically not eligible for benefits.
- Applies to those not eligible for regular benefits, including those that have already exhausted rights to regular or extended benefits, provided that they meet certain criteria – i.e. a need related to COVID-19.
- It appears that furloughed workers will be eligible for benefits, even while staying on company benefit plans.
- Does not include those that have the ability to telework with pay or are receiving paid leave benefits.
- Available for loss of pay/income between January 27, 2020 and December 31, 2020.
- No “waiting period” for benefits.
- Benefits shall not exceed 39 weeks total benefits under this or any other unemployment provision, unless extended benefits are provided.
Pandemic Emergency Unemployment Compensation: provides an additional 13 weeks on top of states’ standard limits for employees meeting specific criteria (lack of work due to COVID-19).
- Florida’s current standard limit for benefits is 12 weeks.
- Thus, it appears that a total of 25 weeks of eligibility—unless extended benefits apply in which case this benefit should be used before the extended benefit.
Temporary Funding of State One Week Waiting Period: provides that if States waive the requirement of a one week waiting period for benefits, the States will be reimbursement for unemployment compensation payments made for that week.
Temporary Financing of Short-Term Compensation (“STC”) Payments: provides that from the date of enactment until December 21, 2020, States such as Florida will be reimbursed for payments made pursuant to an STC program, if the need for such payments arises from a reduction in hours due to COVID-19 and the works is not employed on a seasonal, temporary, or intermittent basis.
- STC allows employers to reduce hours of work for employees rather than laying-off some employees while others continue to work full time.
- Those employees experiencing a reduction in hours are allowed to collect a percentage of their unemployment compensation benefits to replace a portion of their lost wages.
- Additional information can be found at this website the State of Florida has established:
Williams Parker has launched a multidisciplinary task force of lawyers across the firm to advise on issues arising from COVID-19 and to provide guidance for affected clients. This team is closely monitoring legal developments and guidance from federal, state, and local government and public health officials. For the latest updates, please visit our website.
This post was originally published on Williams Parker’s Labor & Employment Blog.
Employers, the long wait is over. You finally have an answer regarding whether the federal overtime regulations are going to be changed. As discussed in previous blog posts Let’s Try this Again: Department of Labor Proposes Salary Increases for White-Collar Exemptions and Once More, With Feeling: Proposed Increase to Minimum Salary for Highly Compensated Employees, in March 2019, the U.S. Department of Labor abandoned its 2016 attempt to increase the salary threshold for exempt employees when it issued a much-anticipated proposed rule. On September 24, 2019, the DOL formally rescinded the 2016 rule and issued its new final overtime rule.
The new rule, taking effect on January 1, 2020, increases the earnings thresholds necessary to exempt executive, administrative, professional, and highly compensated employees from the Fair Labor Standard Act’s overtime pay requirements from the levels that had been set in 2004. Specifically, the new final rule:
- Increases the “standard salary level” from $455 to $684 per week (equivalent to $35,568 per year for a full-year worker);
- Raises the total annual compensation level for “highly compensated employees” from $100,000 to $107,432 per year; and
- Revises the special salary levels for workers in U.S. territories and in the motion picture industry.
And, for the first time, the final rule allows employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the standard salary level for executive, administrative, and professional employees (not highly compensated employees).
Employers take note, however, that the new final rule does not change the duties portions of the otherwise affected exemptions. For more information about the new final rule, you can go to the Department of Labor website.
As New Year’s Day will be here before we know it, this is a good time for employers to audit their pay practices to make sure that employees are properly classified, update timekeeping and payroll systems, and train reclassified employees on new processes before the new rule takes effect.
This post originally appeared on The Williams Parker Labor & Employment Blog.
One aspect of the new Tax Act (the Act) that has not been widely reported impacts employers that amicably resolve claims of sexual harassment. The provision denies tax deductions for any settlements, payouts, or attorneys’ fees related to sexual harassment or sexual abuse if such payments are subject to a non-disclosure or confidentiality agreement. Specifically, Section 162(q) to the Internal Revenue Code provides:
PAYMENTS RELATED TO SEXUAL HARASSMENT AND SEXUAL ABUSE.—No deduction shall be allowed under this chapter for—
(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or
(2) attorney’s fees related to such a settlement or payment.
The intent of this provision is to deter confidentiality provisions in settlements of harassment claims. It is unclear if this provision will actually have the desired impact. Companies may value the confidentiality provisions more than the tax deductions permitted in their absence, and thus continue to enter into confidential settlement agreements. Alternatively, this provision of the Act may end up hurting those bringing harassment claims. Alleged victims may want confidentiality provisions in order to avoid any publicity about their claims. However, by removing tax incentives for employers, an employer may reject a higher settlement amount or settlement of claims altogether.
Section 162(q) of the Act is bound to create confusion as to its applicability as it fails to define key terms. Namely, the Act fails to define “sexual harassment” or “sexual abuse,” both of which are pivotal to the application of the new provision. The Act also fails to contemplate how the provision is to be applied in settlement arrangements involving a variety of claims. Are the sex-based claims separable from a universal confidentiality covenant? Causing further confusion, the Act fails to explain what attorney’s fees are considered to be “related to such a settlement or payment.” Are these only the fees related to settlement negotiations, drafting the agreement, and execution or payment? Or does it extend to the claim’s inception and include the underlying investigation of the claims?
In light of the numerous questions raised by Section 162(q), employers should review their standard settlement agreements and practices and consider revising the breadth of any releases, nondisclosure provisions, or any representations or remedies.
This post was originally posted on the Williams Parker Labor & Employment Blog.
As Florida prepares for a potential direct hit by Hurricane Irma, employers have many concerns. At some point, when decisions have been made about if a business will stay open and if goods or people need to be moved out of harm’s way, the following question will most likely be asked: “Should I pay exempt employees who miss work due to bad weather conditions?”
When it comes to deductions from exempt employees’ salaries it is easy to get into trouble. The general rule is that an exempt employee is entitled to receive his or her entire salary for any workweek he or she performed work. This means, if the worksite closes for a partial week due to bad weather conditions (such as a hurricane), and the exempt employee has worked during that workweek, the employee is entitled to his or her full salary. However, if the employer has a leave benefit, such as PTO, and the employee has leave remaining, the employer can require the employee to use paid time off for this time away from work. If the employee does not have any remaining leave benefit, he or she must be paid.
If the work site remains open during inclement weather and an employee is absent (even if due to transportation issues), the employee can be required to use paid time off. If the employee does not have any paid time off remaining, the employer may deduct a full-day’s absence from the employee’s salary. For a more detailed explanation see this opinion letter from the U.S. Department of Labor.
As for non-exempt employees, the FLSA only requires that employees be paid for the hours they actually work. However, those non-exempt employees on fixed salaries for fluctuating workweeks, must be paid their full weekly salary in any week for which work was performed.