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”
Court Sides With Video Game Producer Over The Use Of Athlete’s Tattoos
Written by Sofia Castillo
On March 26, 2020, the district court for the Southern District of New York issued a landmark ruling in a case closely followed by the film, video game, sports and tattoo industries. Where for several years the only direct precedent on the issue of expressive tattoos in expressive works was limited to early rulings in cases like that involving The Hangover or relegated to settlements, Solid Oak Sketches, LLC v. 2K Games, Inc. firmly resolved all doubt. In the ruling, the court granted the defendant video game publishers’ motion for summary judgment on three separate grounds, finding that the defendants’ depiction of basketball superstars’ tattoos in a “NBA2K” video game was: (1) a “de minimis” use, (2) allowed under the players’ implied license given by the tattoo artists, and (3) a fair use. This decision comes almost exactly two years after Judge Swain denied the defendants’ motion to dismiss the claims.
On the first ground, the court looked to precedent regarding “de minimis” use principles in other contexts. Ultimately, the defendants’ video evidence convinced the court that NBA2K’s depiction of tattoos on basketball superstars LeBron James, Kenyon Martin and Eric Bledsoe (and none of the other over 400 available players in the game) was “de minimis” and therefore “no reasonable trier of fact could find the Tattoos as they appear in NBA 2K were substantially similar to the Tattoo designs licensed to Solid Oak.” The court found that the small size and distorted angles of the tattoos’ display as part of the game play was “indiscernible to the average game user,” making the plaintiff’s copyright expression insufficiently observable to rise to the level of an actionable taking. Continue reading “Court Sides With Video Game Producer Over The Use Of Athlete’s Tattoos”
COVID-19 Client Communication, Vol. 4
As a part of our ongoing series in keeping our clients and friends abreast of various changes to policies and laws resulting from COVID-19, please find the latest updates below. Continue reading “COVID-19 Client Communication, Vol. 4”
COVID-19 Causes Coverage
SEC Grants Additional Time For Filings Impacted By COVID-19
Written by Blake Baron
Earlier this month, the U.S. Securities and Exchange Commission (the “SEC”) provided conditional regulatory relief to those public companies impacted by COVID-19 (novel coronavirus) with a 45-day extension to file certain SEC filings that would have been otherwise due between March 1, 2020 and April 30, 2020. The SEC announced today that it was modifying that prior relief to cover certain filings due on or before July 1, 2020. The SEC acknowledged that many companies’ operations continue to be significantly impacted by the ongoing COVID-19 pandemic, which may result in difficulties for those companies to meet their applicable SEC filing deadlines. Continue reading “COVID-19 Causes Coverage”
SEC Sets Course on COVID-19 Disclosure
Written by Blake Baron
Introduction
On March 25, 2020, the SEC’s Division of Corporation Finance provided disclosure guidance to public companies to assist in the evaluation of a company’s disclosure obligations with respect to the COVID-19 (novel coronavirus) pandemic and related business and market disruptions.
While it may be difficult for companies to assess or predict the exact impact of COVID-19 on individual companies or entire industries, the SEC explained that a company may have obligations to disclose certain risks and effects to the extent material to investment and voting decisions. Such risks and effects include the impact of COVID-19 on the current state of a company’s operations, management expectations regarding its future effects, a company’s response to the evolving pandemic and operational plans to address such uncertainties. The SEC noted that disclosure of these risks and COVID-19-related effects may be necessary or appropriate in various sections of SEC filings, including, but not limited to, management’s discussion and analysis, the business section, risk factors, legal proceedings, disclosure controls and procedures, internal control over financial reporting, and a company’s financial statements. Continue reading “SEC Sets Course on COVID-19 Disclosure”
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”
America CARES
Tax and Employee Benefits Provisions of the CARES Act Written by David Wheeler Newman The Coronavirus Aid, Relief, and Economic Security Act (the “Act”) contains numerous provisions, intended to stimulate the economy, which will impact tax liability and compliance for individuals and businesses. Some of the important provisions are highlighted below. There are many additional provisions in this legislation impacting taxpayers and the below summary … Continue reading America CARES
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”
Supreme Court Rules in Favor of North Carolina, Applies Sovereign Immunity
Written by Bradley J. Mullins and Adé T.W. Jackson
On Monday, the U.S. Supreme Court ruled that a provision of the Copyright Act that allows for lawsuits against state governments for copyright infringement is unconstitutional. The justices were considering Allen, et al. v. Cooper, et al., Case No. 18-877 (Mar. 23, 2020), a case where North Carolina was being sued by a filmmaker for using his videos and photos of the wreck of Queen Anne’s Revenge — the flagship of the pirate Blackbeard. The justices unanimously ruled that North Carolina was shielded from the lawsuit by state sovereign immunity.
Although the Eleventh Amendment gives states broad sovereign immunity against such lawsuits, the plaintiff relied on the Copyright Remedy Clarification Act (CRCA) — a statue enacted by Congress in 1990 expressly to permit infringement claims against the States. However, Monday’s ruling invalidates the statute, with the justices determining that Congress lacked the constitutional authority required to abrogate state sovereign immunity in this way. Continue reading “Supreme Court Rules in Favor of North Carolina, Applies Sovereign Immunity”
MSK Blog 