US Department of Labor Will Not Enforce The FFCRA Until April 18, 2020

Written by Jeremy Mittman and Stephen Franz

The US Department of Labor (“DOL”) Wage & Hour Division (“WHD”) just issued a Field Assistance Bulletin titled “Temporary Non-Enforcement Period Applicable to the Families First Coronavirus Response Act” (“FFCRA” or the “Act”).  The Bulletin, which is addressed to the WHD’s Regional Administrators, Deputy Regional Administrators, Directors of Enforcement, and District Directors, provides guidance to WHD field staff regarding the temporary non-enforcement period applicable to the FFCRA.

According to the Bulletin, the DOL will not bring enforcement actions against any public or private employer for violations of the FFCRA occurring within 30 days of the enactment of the FFCRA, i.e. March 18 through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act.  In short, this means that, although the FFCRA goes into effect on April 1, 2020, the DOL will not enforce it until April 18, 2020, as long as the following apply. 

For purposes of this non-enforcement position, an employer who is found to have violated the FFCRA acts “reasonably” and “in good faith” when all of the following facts are present:

1. The employer remedies any violations, including by making all affected employees whole as soon as practicable.
2. The violations of the Act were not “willful” based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”).
3. The DOL receives a written commitment from the employer to comply with the Act in the future.

In the Bulletin, the DOL specifically reserved its right to exercise its enforcement authority under the following circumstances: (1) if the employer violates the Act willfully, (2) if the employer fails to provide a written commitment to future compliance with the Act, or (3) if the employer fails to remedy the violation upon notification by the DOL, the employee seeking payment, or the employee’s representative (including by making all affected employees whole as soon as practicable).

After April 17, 2020, this limited stay of enforcement will be lifted, and the DOL will fully enforce violations of the Act, as appropriate and consistent with the law.

All companies under 500 employees are encouraged to consult with counsel to make sure they are meeting their obligations under the FFCRA.