America CARES About Unemployment

DOL Issues Guidance on New CARES Act Unemployment Insurance Provisions

Written by Jeremy Mittman and Thea Rogers

Last week, the DOL issued two guidance letters (available here and here) to state workforce agencies (such as the California EDD) on the unemployment insurance provisions of the recently enacted CARES Act. The CARES Act, which has been discussed in prior blog posts at length (see, e.g. here, here and here), provides emergency assistance for certain individuals, families, and businesses affected by the COVID-19 pandemic.  Most notably, the DOL guidance instructs state agencies on how to implement and operate two programs that were included as part of the CARES Act involving unemployment insurance benefits: the Pandemic Unemployment Assistance (PUA) program and the Federal Pandemic Unemployment Compensation (FPUC) program. Additionally, the federal government will provide 100% reimbursement to states that provide compensation to individuals beginning on their first week of unemployment (i.e., states which do not require a waiting week) and enter into an agreement with the DOL. Continue reading “America CARES About Unemployment”

Georgia Employers On the Hook

Georgia: Employers Must File Partial Unemployment Insurance Claims for Their Employees

Written by Jeremy Mittman and Carly Epstein

On March 16, 2020, Georgia’s Department of Labor (the “Georgia DOL”) became the first state to adopt a rule that requires employers to file partial unemployment claims for any week during which an employee (full-time or part-time) has his or her hours reduced or eliminated due to a partial or total company shutdown caused by the COVID-19 pandemic.  Under Georgia law, partial unemployment claims apply to employees who will experience a reduction in hours or a temporary layoff.  Employers must file partial unemployment claims online by visiting the Employer Portal, and must file partial claims for each weekly pay period during the temporary reduction/layoff. Continue reading “Georgia Employers On the Hook”

California Court Of Appeal Says Unlimited Vacation Policies Fly

Written by Jeremy Mittman

Why This Matters

Over the last several years, some employers have chosen to adopt unlimited vacation time policies for their employees.  Unlike more traditional vacation policies, under unlimited vacation policies, vacation time does not vest.  Rather, employees can take as much vacation time as they’d like (generally within reason and subject to business needs).  One of the benefits of these policies for employers is that, while vested vacation time is considered wages and must be paid out upon termination of employment, because unlimited vacation time does not vest, there is nothing to pay out when employment ends.

Recently, in McPherson v. EF Intercultural Foundation, Inc., the California Court of Appeal ruled that, while under the facts of the particular case, the employer’s “unlimited” vacation time policy was not valid (and so the actual vacation days taken by plaintiffs should be accrued and paid out upon termination), employers may have “truly unlimited time off policies” if they are provided to employees in writing and meet certain criteria set forth below.

Continue reading “California Court Of Appeal Says Unlimited Vacation Policies Fly”

New FFCRA Regulations Provide Clarity

Top 15 Practical Takeaways From the New Sick and Family Leave DOL Regulations

Written by Jeremy Mittman and Stephen Franz 

On the same day the Families First Coronavirus Response Act (“FFCRA”) took effect, the U.S. Department of Labor’s (”DOL”) Wage and Hour Division (“WHD”) posted a temporary rule issuing regulations to the FFCRA on April 1, 2020.  The rule, which expires on December 31, 2020, provides much-needed clarity to the expanded family and medical leave and emergency paid sick leave provisions of the FFCRA.  This is the latest guidance on the FFCRA from the DOL, which previously published and updated a series of “Questions and Answers” related to the law’s paid leave provisions after its enactment.  Our prior analysis of the FFCRA and how it affects employers is available here.

Because the rule answers previously unaddressed questions and clarifies the DOL’s prior guidance, Employers may need to adjust their FFCRA policies and practices accordingly.  Fortunately, the WHD will not start enforcing the FFCRA until April 18, 2020, so Employers have time to react to these new rules.

Here are the top 15 new takeaways for Employers from the rule. Continue reading “New FFCRA Regulations Provide Clarity”

NLRB Advice on COVID-19

NLRB’s General Counsel Issues Advice Concerning COVID-19

Written by Jonathan Turner

As federal, state and local measures are being enacted to help curb the spread of the Coronavirus, the General Counsel for the National Labor Relations Board (“NLRB”) recently issued a memo intended to assist the public, employers and unions in analyzing the impact that emergency decision-making by unionized employers have on collective bargaining obligations.  The memo issued on March 27, 2020, and is directed to the Regional Directors, Officers-in-Charge and Resident Officers of the several NLRB field offices throughout the country.  The General Counsel has the sole statutory authority to determine whether to issue an unfair labor practice complaint for alleged violations of the National Labor Relations Act, including violations based on an employer’s alleged failure to bargain with a union over changes in business operations affecting employees represented by the union. Continue reading “NLRB Advice on COVID-19”

Employee Relief in the Empire State

The New York COVID-19 Quarantine Leave Law

Written by Jeremy Mittman and Timothy Carter 

On March 18, 2020, the New York State Assembly passed and Governor Andrew Cuomo signed into law the New York COVID-19 Quarantine Leave Law (the “Law” or the “New York Law”), providing emergency paid and/or unpaid sick leave to all eligible employees unable to work because of a mandatory or precautionary quarantine order issued by the state of New York, the department of health, local board of health, or any governmental entity authorized to issue such an order due to COVID-19. The Law, which became effective immediately, also expands New York’s Paid Family Leave Law (the “NYPFL”) and Disability Benefit Law to provide eligible employees with salary continuation during periods of otherwise unpaid leave. The Law also expands the right to benefits under the NYPFL where an employee needs leave to care for a minor child of the employee who is subject to a mandatory or precautionary quarantine or isolation order due to COVID-19. Continue reading “Employee Relief in the Empire State”

More FFCRA Questions Answered

DOL Releases Additional Q&A for Families First Coronavirus Response Act, Effective April 1, 2020

Written by Jeremy Mittman 

On March 27, 2020 the U.S. Department of Labor (”DOL”) published a second series of “Questions and Answers” related to the FFCRA, supplementing the DOL’s initial March 24, 2020 set of Questions and Answers issued on March 24, 2020.  Here are the top six takeaways in the latest Questions and Answers: Continue reading “More FFCRA Questions Answered”

Enforcement Extension

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.  Continue reading “Enforcement Extension”

Keeping Employees Posted

DOL Releases Model Families First Coronavirus Response Act Notice That Eligible Employers Must Post

Written by Jeremy Mittman and Stephen Franz

On March 26, 2020 the U.S. Department of Labor (”DOL”) published the model notice that certain employers must post informing employees of their rights under the Families First Coronavirus Response Act (“FFCRA”).  Here is a copy of the notice.

The FFCRA contains COVID-19-related paid family leave and sick leave provisions which apply to private employers with fewer than 500 employees.  The FFCRA mandates that eligible employers post notice of employees’ rights under the FFCRA in “conspicuous places on the premises where notices to employees are customarily posted.”  As the FFCRA also states that the notice shall be prepared or approved by the DOL, eligible employers should post a copy of the DOL’s model notice, rather than their own notice.

The DOL also published Frequently Asked Questions addressing topics including where employers must “post” the notice if the workforce is telecommuting, how to provide notice if employees work in multiple locations, and if the notice must be translated (additional detail provided in the FAQs themselves, copied below): Continue reading “Keeping Employees Posted”

Department of Labor Releases Initial Q&A for Families First Coronavirus Response Act

Department of Labor Releases Initial Q&A for Families First Coronavirus Response Act, Effective April 1, 2020

Written by Jeremy Mittman and Stephen Franz 

On March 24, 2020 the U.S. Department of Labor (”DOL”) published an initial series of “Questions and Answers” related to the Families First Coronavirus Response Act (“FFCRA”).  The FFCRA contains COVID-19-related paid family leave and sick leave provisions which apply to private employers with fewer than 500 employees.  Notably, and surprisingly, the DOL states that the FFCRA is effective on April 1, 2020.  Because the FFCRA states the leave provisions shall take effect “not later than 15 days” after the March 18, 2020 date of enactment, many assumed that the DOL would begin enforcement on April 2, 2020.  The agency did not provide any reason for this accelerated start date.

The Questions and Answers address topics including how an employer may count its employees in determining the 500-employee threshold, whether the paid leave requirements are retroactive, and how to calculate employees’ pay for leave purposes (additional detail provided in the guidance itself, copied below). Unfortunately, the Questions and Answers do not answer two of the most pressing questions facing many employers: (1) whether “shelter in place” orders are “quarantine or isolation” orders necessitating paid leave under the FFCRA; and (2) whether furloughed employees are eligible for paid leave.  Employers should expect further guidance from the DOL in the coming days, including more Q&A, which will hopefully address these critical issues. Continue reading “Department of Labor Releases Initial Q&A for Families First Coronavirus Response Act”