Tag Archives: employment lawyers

UPDATED: Families First Coronavirus Response Act: Paid Sick and Family Leave for COVID-19 Absences

This post was updated March 26 based on subsequent DOL guidance. Updates are shown in red. 

Congress enacted the Families First Coronavirus Response Act (H.R. 6201) to provide emergency family and medical leave broader than the current Family and Medical Leave Act (FMLA) and paid sick leave to certain employees affected by COVID-19, as well as other provisions to help individuals and businesses handle impacts of the pandemic. It was signed into law shortly after its passage by the Senate on March 18, 2020. The new law will take effect on April 1, 2020 and expire on December 31, 2020.

The new leave provisions of the Families First Coronavirus Response Act are summarized below under their respective Acts.

Emergency Family and Medical Leave Expansion Act

New Expanded Family and Medical Leave: The Emergency Family and Medical Leave Expansion Act (EFMLEA) amends the FMLA to provide up to 12 weeks of job-protected paid leave for employees who are unable to work or telework because they need to care for a minor son or daughter if the child’s elementary or secondary school or place of care has been closed or the child care provider of the son or daughter is unavailable, due to a public health emergency with respect to COVID-19 declared by a Federal, State, or local authority. The leave may be taken between April 1 and December 31, 2020. (Note: this is the only form of FMLA leave that is required to be paid).

Covered Employers: Private employers with fewer than 500 employees at the time leave is taken and government employers are covered.  (Note: this is unlike other FMLA leave that requires 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year)

Eligible Employees: Employees who have been employed by the employer for at least 30 calendar days are eligible.

Rate of Pay:

  • The first 10 days of this leave may be unpaid.
  • After 10 days of leave, employees are paid at two-thirds of their regular rate for the usual number of scheduled hours. Special calculations are provided for employees who work variable hours.
  • Employees may choose to substitute accrued employer provided vacation, personal, medical or sick leave during the first 10 days of leave.
  • Payments made to employees for public health emergency leave are capped at $200 per day and $10,000 in the aggregate.

Notice:  In any case where the necessity for public health emergency leave is foreseeable, an employee shall provide the employer with such notice of leave as is practicable.

Restoration to Position: As with other FMLA leaves, employees must be restored to the  same or equivalent position at the end of leave, except employers with fewer than 25 employees are not required to restore the employee to the same or equivalent position at the end of leave if the employee’s position no longer exists due to economic or operating conditions caused by the coronavirus emergency and the employer makes reasonable efforts to restore the employee to an equivalent position at the time and over a one-year period.

Exclusions and Exemptions:

  • Employers of employees who are healthcare providers or emergency responders may elect to exclude such employees from eligibility for paid leave.
  • The Secretary of Labor may exempt small businesses with fewer than 50 employees in certain dire circumstances.
  • To elect this small business exemption, employers should document why their businesses with fewer than 50 employees meet the criteria set forth by the U,S, Department of Labor (DOL), which will be addressed in more detail in forthcoming regulations.
  • Employers should not send any materials to the DOL when seeking a small business exemption for expanded family and medical leave
  • The DOL is to promulgate regulations that will address the process for requesting an exemption, as well as other issues.

Employer Liability: Employers with fewer than 50 employees are exempt from private lawsuits alleging violations of the EFMLEA, but such employers would still be subject to actions by the Secretary of Labor. Individual liability and successor liability still apply.

Emergency Paid Sick Leave Act

New Paid Sick Leave:

  • Covered employers are required to provide full-time employees with 80 hours of paid sick leave when the employee cannot work or telework for one of the following specified circumstances related to COVID-19, which we are colloquially referring to as a “Group 1” and “Group 2” triggering events because of the difference in pay requirements between the two groups:

Group 1

  1. subject to a government quarantine or isolation order related to COVID-19;
  2. advised by healthcare providers to self-quarantine due to COVID-19;
  3. experiencing symptoms of COVID-19 and seeking a medical diagnosis;

Group 2

  1. caring for an individual subject to a government quarantine order or advised by a healthcare provider to self-quarantine;
  2. caring for a son or daughter if the son or daughter’s school or place of care is closed or their child care providers are unavailable due to COVID-19 precautions; or
  3. experiencing substantially similar conditions as those specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
  • Part-time employees meeting the requirements above are entitled to the number of hours of paid sick time equal to the number of hours they work, on average, over a two-week period.
  • The amount of paid sick time available to an employee is determined by the number of hours the employee would otherwise be normally scheduled to work, with the number of hours available to employees with varying schedules determined in the same manner as under the EFMLEA.
  • Employers may not require that employees search for or find a replacement employee to cover the hours during the employee’s use of emergency paid sick time.
  • Paid sick time terminates with the beginning of the next shift immediately following the termination of the need for paid sick time.
  • Paid sick time is not required to be paid out at termination of employment.
  • Paid sick time may be taken between April 1 and December 31, 2020.

Covered Employers: Private employers with fewer than 500 employees and government employers are covered.

Eligible Employees: All employees who meet the criteria above regardless of length of employment are eligible for emergency paid sick leave.

Rates of Pay:

  • Where the employee takes leave for a “Group 1” reason, the amount of federal emergency sick pay is the greatest of the regular rate of pay, minimum wage under the Fair Labor Standards Act (FLSA), or the state or local minimum wage, and the paid leave is capped at $511 per day, with $5,110 in the aggregate.
  • When the employee takes leave for a “Group 2” reason, the paid leave rate is 2/3 of the greatest of the amounts above, and is capped at $200 per day, with $2,000 in the aggregate.
  • Note: If an employee is taking expanded family and medical leave, the employee may take paid sick leave for the first ten days (2 weeks) of that leave period, or the employee may substitute any accrued vacation leave, personal leave, or medical or sick leave the employee has under an employer’s policy. For the following ten weeks, the employee will be paid for leave at an amount no less than 2/3 of your regular rate of pay for the hours normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage, or the applicable state or local minimum wage. However, the employee will not receive more than $200 per day or $12,000 for the twelve weeks that include both paid sick leave (capped at $2,000) and expanded family and medical leave (capped at $10,000) when the employee is on leave to care for the employee’s child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

Notice:

  • After the first workday (or portion thereof) for which an employee receives paid sick time, an employer may require the employee to follow reasonable notice procedures to continue receiving such leave.
  • The Secretary of Labor promulgated model notices regarding emergency paid sick leave, which must be posted by employers.  See our blog post for more information.

Employers with Existing Leave Policies:

  • Federal emergency paid sick leave is in addition to whatever sick leave is already offered by employers (including subject to state or local requirements).
  • Employers may not require employees to use employer provided paid leave before employees use new federal paid sick time.
  • There is no specific provision preventing employers from changing their leave programs after the law goes into effect, which is contrary to an earlier version of the bill.

Exclusions and Exemptions:

  • Employers of employees who are healthcare providers or emergency responders may elect to exclude such employees from eligibility for paid sick leave. (Note: the term “healthcare provider” is a defined term with a specialized meaning. See our recent post discussing that issue. 
  • The Secretary of Labor is empowered to exempt small businesses with fewer than 50 employees under certain dire circumstances.

Employer Liability: A violation of the Emergency Paid Sick Leave Act, including discriminating (or retaliating) against an employee for taking paid sick leave, filing a complaint, instituting a proceeding, or testifying or preparing to testify in any such proceeding, is equivalent to a violation under the FLSA, and is subject to the same remedies: damages, an equal amount as liquidated damages, attorneys’ fees, costs, and injunctive relief or reinstatement.

For more information about federal and state actions implemented to help businesses through the pandemic, including tax credits related to the new paid leaves, see our Business & Tax Blog.  And please stay tuned to our blog, including our general FAQ post about COVID-19, which will be updated periodically to reflect new agency guidance and legislation. For particular questions, we are available to help employers navigate through these turbulent times.

Williams Parker has launched a multidisciplinary task force of lawyers across the firm to advise on issues arising from the Coronavirus 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.

Gail E. Farb
gfarb@williamsparker.com
(941) 552-2557

Important Notice for Employers Required to Submit EEO-1 Report

The Equal Employment Opportunity Commission issued a notice this morning that, due to the recent partial lapse in appropriations, the deadline to submit EEO-1 data will be extended until May 31, 2019. The EEO-1 is an annual survey that requires certain employers to file the EEO-1 report. The EEO-1 Report, Standard Form 100, is a compliance survey that requires company employment data to be categorized by race/ethnicity. As set forth on the EEOC’s website, all companies that meet any of the following criteria are required to file the EEO-1 report annually:

  • The company is subject to Title VII of the Civil Rights Act of 1964, as amended, with 100 or more employees; or
  • The company is subject to Title VII of the Civil Rights Act of 1964, as amended, with fewer than 100 employees, if the company is owned by or corporately affiliated with another company and the entire enterprise employs a total of 100 or more employees; or
  • The company is a federal government prime contractor or first-tier subcontractor subject to Executive Order 11246, as amended, with 50 or more employees and a prime contract or first-tier subcontract amounting to $50,000 or more.

Details instructions for the 2018 EEO-1 filers, including the exact date of the survey opening, will be forthcoming. Filers should refer to the EEO-1 website in the coming weeks for updates on the new schedule. Also, see the EEOC’s FAQ for further information.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Office Holiday Parties: Avoid Adding Your Company to the Naughty List

Harvey Weinstein, Kevin Spacey, Michael Oreskes, Brett Ratner, Louis C.K., Charlie Rose, and Matt Lauer are a few well-known names that have already appeared on the naughty list for 2017. Although the Mad Men days of the sexy secretary sitting on Santa’s lap (the boss’s lap) with his arms wrapped around her while both are drinking a dry martini SHOULD be a vestige of the past, there are those that believe that “keep your hands to yourself” does not apply to them.  And, there are those that understand the “hands-off” rule, yet when under the influence of alcohol, find their inhibitions on the copy room floor.

This year, with stories of sexual harassment and abuse dominating the news, it is more important than ever for employers to consider the potential risks associated with any planned celebration. Employers should keep in mind that office policies that are generally recognized in the workplace sometimes are forgotten when there is a party, especially a party with libations. A holiday office party can embolden inappropriate behavior, from simple innuendos to unwelcome touching that could lead to claims of sexual harassment. The office holiday party can be a quagmire of potential employment issues, even beyond sexual harassment. These issues can include claims due to on-the-job injuries (workers compensation), unpaid wages for attending the party (the Fair Labor Standards Act), or other types of workplace harassment or discrimination (e.g. religion).

As you prepare for your office party, consider whether alcohol should be available, as most issues arise due to someone bending the elbow a bit too much. If you do decide to provide spirits make sure you have someone (a designated responsible adult) that is watching to ensure that your workforce does not get too “relaxed” and cross the line. Possibly limit how much alcohol is served and make sure any employee that drinks a little too much has a ride home. Evaluate in advance whether the party is going to be mandatory or not. If its voluntary and employees do not feel compelled to attend, then employers are not required to compensate employees for their attendance. Review the plans for the party in advance to see if there are any activities that could be considered inappropriate or offensive to members of any protected class.  Finally, make sure that employees understand that the company’s policies and procedures, especially those related to conduct, are still in effect at the party. Most parties are benign and conclude with no real issues to speak of, but you don’t want to be the exception to the rule. You do not want your CEO or VP added to the naughty list.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Arbitration Update: Eleventh Circuit Finds in Favor of Florida Employers

Florida employers are beginning to benefit from recent U.S. Supreme Court and National Labor Relations Board (NLRB or Board) rulings.  On June 26, 2018, the federal Eleventh Circuit Court of Appeals issued two decisions in favor of Florida employers in which it rejected NLRB rulings that the employers had violated the National Labor Relations Act (NLRA). The cases are Everglades College, Inc. v. NLRB and Cowabunga, Inc. v. NLRB.

Applying the Supreme Court’s Epic Systems decision (for further information on Epic, click here), the Eleventh Circuit held in both cases that the inclusion of class and collective action waivers in these employers’ mandatory arbitration agreements did not violate the NLRA. Additionally, relying on the Board’s Boeing decision (for more information, on Boeing click here), the Eleventh Circuit vacated the NLRB’s holdings that the arbitration agreements were unlawful because employees could “reasonably believe that they were prohibited from filing unfair labor practice charges with the NLRB.”

In Boeing, the NLRB retroactively changed the rationale it used to evaluate the lawfulness of facially neutral employee policies, thus eliminating the broadly applied “reasonably believe” standard that prohibited any rule that could be interpreted as covering protected activity. Without that standard, the Board could not defend its prior decisions in the appeals. Therefore, the Eleventh Circuit remanded the remaining issues in the cases to the NLRB so that it can apply its new Boeing rationale, which does not interpret ambiguities against the drafter and does not ban all activity that could conceivably be included in generalized provisions.

Even with the NLRB General Counsel’s recent memo addressing the application of the Boeing standard (for more on the memo, click here), it is unclear how the Boeing rationale will apply to arbitration agreements. Regardless, employers should remain hopeful as the new standard provides for a more balanced review.

Gail E. Farb
gfarb@williamsparker.com
941-552-2557

[Editor’s Note: Williams Parker attorney Gail E. Farb represented the employer in the Everglades College, Inc. case cited above.]

The NLRB Continues to Retreat on Its Assault of Handbook Policies

In a recently released memo, the NLRB General Counsel confirmed the Board’s December 2017 signal of a shift in how the Board will scrutinize employer personnel policies. In December 2017, the NLRB changed course when it replaced the Lutheran Heritage standard, which had been aggressively used by the Board to invalidate personnel policies, with the Boeing standard (as discussed in our post from December 2017, “The NLRB’s Holiday Gift to Employers”). The Lutheran Heritage standard evaluated whether employees could “reasonably construe” a policy as barring them from exercising their rights under the NLRA. If the answer was “yes,” the policy was improper. The Lutheran Heritage standard was often applied in a manner that gave the appearance that the NLRB thought employees were lacking in intellect or common sense. Thus, the switch to the Boeing standard was generally celebrated by employers.

Even so, many employers felt that although the Boeing standard was a step in the right direction, it was somewhat complicated. In response to these criticisms, on June 6, 2018, NLRB General Counsel Peter Robb issued GC 18-04 “Guidance on Handbook Rules Post-Boeing.” This guidance provides examples of the policies (which he refers to as rules) that would fit into each of the three categories, and also makes it clear that the NLRB will no longer interpret ambiguities in rules against the drafter, “generalized promises should not be interpreted as banning all activity that could be considered included.”

The memo explains that the Boeing standard balances the personnel policy in question’s impact on NLRA-protected rights with the employer’s legitimate business justifications. The Boeing analysis uses three categories to determine the legality of rules:

Category 1: Rules that are Generally Lawful to Maintain

Category 2: Rules Warranting Individualized Scrutiny

Category 3: Rules that are Unlawful to Maintain

The memo goes on to state that Category 1 includes rules that may have been found unlawful under the Lutheran Heritage standard. It also explains that the types of rules in this category are generally lawful because the rules do not prohibit or interfere with the exercise of NLRA-protected rights or because there are business justifications associated with the rule. Rules in this category include:

(a) civility rules;

(b) no photography, no-recording rules;

(c) rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations;

(d) disruptive behavior rules;

(e) rules protecting confidential, proprietary, and customer information or documents;

(f) rules against defamation or misrepresentation;

(g) rules against using employer logos or intellectual property;

(h) rules requiring authorization to speak for company; and

(i) rules banning disloyalty, nepotism, or self-enrichment.

The memo provides that charges alleging that rules in Category 1 are facially unlawful are to be dismissed, recognizing however, that special circumstances could render a normally lawful rule in Category 1 unlawful. Facially lawful rules cannot be used to prohibit protected activity or to discipline employees for engaging in protected activity.

Category 2 rules are to be evaluated on a case-by-case basis. Such rules are not facially lawful or unlawful. If rules in this category restrict NLRA-protected rights, then the question is whether the employer’s business interest in having the rule outweighs the restriction on NLRA-protected rights. Some “possible examples” of Category 2 rules are:

(a) broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union;

(b) confidentiality rules that encompass employer business or employee information;

(c) rules regarding disparagement or criticism of the employer;

(d) rules regulating the use of the employer’s name;

(e) rules generally restricting speaking to the media or third parties;

(f) rules banning off-duty conduct that might harm the employer; and

(g) rules against making false or inaccurate statements.

Category 3 rules are unlawful to maintain because they prohibit or limit NLRA-protected conduct and the adverse impact on NLRA-protected rights outweigh any justifications for them. Category 3 rules include:

(a) confidentiality rules specifically regarding wages, benefits, or working conditions; and

(b) rules against joining outside organizations or voting on matters concerning.

In light of Boeing and GC18-04, employers should be more confident in their ability to maintain appropriate policies for their workplaces, including those that dictate professional behavior. The new approach is clearer and provides for a balancing of employer justifications with employee rights, resulting in common-sense personnel policies being upheld as lawful. Employers are now better positioned to defend attacks on their well drafted, common-sense personnel policies.

Summer associate Ryan Larson assisted in preparing this blog post.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

The Mark of the Beast and Religious Accommodation in the Workplace

This week, the United States Supreme Court refused to grant certiorari to hear a religious accommodation case from the Fourth Circuit Court of Appeal, affirming a jury award for a long-term employee that retired because he believed that his employer’s requirement that he use a hand-scanner to clock into work would brand him with the “Mark of the Beast” (as referenced in the Book of Revelation in the Bible). Read the full opinion.

This case began back in 2012 in West Virginia. Plaintiff, an evangelical Christian, requested that he be allowed to use paper timesheets instead of the hand-scanning time clock that his employer was implementing. His request was denied. His employer asserted that he could use his left hand instead of his right hand in the scanner, as the Mark of the Beast is associated with the right hand and forehead. The employee was given an ultimatum, use the hand-scanner or be terminated. He chose to retire. Subsequent to his retirement, he learned that the company accommodated two employees with hand injuries, who could not be scanned, by installing a key pad and providing codes to the employees to enter into the key pad. With this knowledge, the employee sought the assistance of the EEOC, which filed suit on his behalf.

Shortly thereafter, I co-authored an article that discussed not only the facts of the suit, but also the framework under which religious accommodation claims are allowed to proceed. The framework for evaluation of religious accommodations has not changed since the article. Read the full article from The Florida Bar Journal.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558