Second Draw Paycheck Protection Program Loans: Answers to Employers’ Frequently Asked Questions

The Consolidated Appropriations Act (CAA), 2021 includes a provision that modified and extended the Small Business Administration’s (SBA) Paycheck Protection Program (PPP). Specifically, Section 311 of the Additional Coronavirus Response and Relief provisions of the CAA provides for PPP second draw loans for eligible businesses. Employers seeking a PPP loan may apply through March 31, 2021. Below are answers to some key questions regarding second draw PPP loans.

Atlantic Canada Versus the Prairies: Tightening and Loosening of COVID-19 Measures

Certain Canadian provinces have been especially hard hit by COVID-19 outbreaks. Most notably, Ontario and Quebec—two of Canada’s most populated provinces—have experienced the highest number of infection counts among the country’s provinces. While Ontario and Quebec have struggled to contain the spread of COVID-19, other provinces have had a different experience.

California Employers Can Seek One-Month Extension for Reporting 2020 Pay Data, State Agency Says

On February 3, 2021, the California Department of Fair Employment and Housing (DFEH) updated its frequently asked questions (FAQs) to make clear that employers can seek an extension for reporting year 2020—known as a request for an “enforcement deferral period”—as to its newly enacted pay data reporting requirement that reports are otherwise due on March 31, 2021.

DC’s Noncompete Ban—A Law of Unintended Consequences

Just as the calendar was turning to 2021, the Council of the District of Columbia threw District of Columbia employers a late-breaking curveball that most did not see coming. The Ban on Non-Compete Agreements Amendment Act of 2020 (D.C. Act 23-563) was passed by the Council on December 15, 2020, and signed by Mayor Muriel Bowser on January 11, 2021. The legislation, which will create a near-total ban on noncompete agreements, took the Washington, D.C., business community by surprise. The final text is substantially broader than the more modest bill that was proposed originally, and the legislation goes well beyond laws enacted in other jurisdictions to curtail the use of post-employment noncompete agreements.

Equality Act Reintroduced to U.S. Congress

On February 18, 2021, U.S. Representative David Cicilline (D-RI) reintroduced the Equality Act (H.R. 5), a bill that would amend federal law (including Title VII of the Civil Rights Act of 1964) to prohibit discrimination on the basis of sexual orientation and gender identity. Although the U.S. House of Representatives passed a nearly identical version of the Equality Act in 2019,  the bill never gained traction in the U.S. Senate and died in committee.

Company E-Sports Leagues Present New Twist on Traditional Employment Law Issues

A growing trend among employers that are turning to new and updated methods of fostering employee collegiality and team bonding involves e-sports leagues. Similar to the traditional company softball team, e-sports leagues provide a modern method for employees to form teams that compete at video games against squads of workers from other businesses. This competitive medium has gained in prominence during the COVID-19 pandemic as employers seek innovative ways for employees to interact while observing social distancing precautions. Employers can view these competitive outlets as a means of fostering creativity, building rapport, and developing trust among personnel.

San Leandro, California Enacts ‘Hazard Pay’ Ordinance for Large-Chain Retail Food Workers, Including Retail Drug Stores

On February 16, 2021, the City Council of San Leandro, California, passed an ordinance titled “Retail Food Worker Hazard Pay Ordinance,” which establishes premium pay for retail food workers during the COVID-19 pandemic. San Leandro is an incorporated city located in Alameda County in the San Francisco Bay Area.

South Dakota Judge Nips Recreational Marijuana in the Bud: Holds Amendment A Unconstitutional

Last November, South Dakota voters approved Amendment A, which allowed for the recreational use of marijuana by individuals 21 years and older (and for possession of up to 1 ounce). On February 8, 2021, a South Dakota judge granted summary judgment in favor of law enforcement officers who filed a lawsuit on behalf of Governor Kristi Noem challenging Amendment A.

Vaccine Volunteers: Is “Thank You” Sufficient Compensation?

The Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees at least minimum wage for all hours worked up to 40 hours in a workweek and time and one-half for all hours worked over 40 hours in the same workweek. An exception to this rule exists for volunteers, who are not categorized as “employees” under the statute. Typically, volunteers are individuals who donate their time to non-profit, civic, religious, and other charitable organizations.

Recreational Marijuana Is Legal in New Jersey: What Employers Need to Know

On February 22, 2021, New Jersey Governor Phil Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). Among other things, the 240-page measure legalizes the recreational use of marijuana for adults age 21 and older and—unfortunately for employers—places significant burdens on companies doing business in New Jersey with respect to marijuana and the workplace.

USCIS Announces Deadline to Download E-Verify Data

Pursuant to the National Archives and Records Administration (NARA) records retention and disposal schedule (N 1-55-08-7), U.S. Citizenship and Immigration Services (USCIS) annually purges E-Verify data that is more than 10 years old. According to USCIS, as of May 14, 2021, employers will no longer have access to E-Verify records that were created on or before December 31, 2010.

Biden Administration Introduces ‘U.S. Citizenship Act’ Immigration Bill in Congress

On February 18, 2021, the Biden administration formally introduced a new immigration bill in Congress—the U.S. Citizenship Act of 2021. The bill, marshaled by Representative Linda Sanchez (D-CA) and Senator Robert Menendez (D-NJ), includes provisions that would impact all aspects of what the administration considers a broken immigration system.

Montebello, California, Passes Premium Pay Ordinance for Grocery and Drug Store Workers

On January 27, 2021, the City Council of Montebello, California, passed an ordinance titled “Premium Pay for Grocery and Drug Store Workers Ordinance.” Montebello is an incorporated city located in Los Angeles County, California. The ordinance requires employers to provide grocery and drug store workers with premium pay of $4.00 for each hour worked. The ordinance took effect immediately and expires in 180 days, unless otherwise extended.

COVID-19 Reopening Setback for Toronto and Some Other Regions in Ontario

On Friday February 19, 2021, the Ontario Government announced that Toronto and two other regions will remain in shutdown for at least two more weeks. Among other things, this means that workers who are nonessential to in-person operations must continue to work from home. This represents the province pausing its recent efforts to reopen most of Ontario’s regions.

Cal/OSHA COVID-19–Related Citations May Provide Leverage to Labor Unions and Their Members

A February 2021 California Division of Occupational Safety and Health (Cal/OSHA) press release trumpeted the agency’s enforcement efforts and its recently issued citations for COVID-19–related violations. Cal/OSHA continues to aggressively issue “serious” classification citations to California employers. For example, Cal/OSHA issued “serious” and “willful-serious” citations with hundreds of thousands of dollars in penalties against a sister agency, the California Department of Corrections and Rehabilitation dba San Quentin State Prison, for COVID-19–related violations.

Coachella’s New COVID-19 Premium Pay Ordinance for Agricultural, Grocery, Restaurant, and Retail Employers

On February 10, 2021, the City Council of Coachella, California, passed the “Premium Pay for Agricultural, Grocery, Restaurant, and Retail Pharmacy Workers Ordinance.” Coachella is located in Riverside County, California. Other cities in the state that have enacted similar measures in 2021 include Montebello, in Los Angeles County, and Oakland, in Alameda County.

Where to Open Shop: New Report Ranks the Best Places to Do Business in the U.S.

The COVID-19 pandemic continues to affect the global economy, and employers are increasingly considering which are the most and least employer-friendly places  new offices, distribution centers, and operational locations, both during the pandemic and after emerging from it. The Arizona State University Center for the Study of Economic Liberty recently released Doing Business North America 2020 (DBNA), a report analyzing and comparing data indicative of the regulatory context for business activity in a number of metropolitan areas. The report ranked 130 cities across Canada, Mexico, and the United States, based on 111 variables for determining where the best places to do business are currently (although given the ever-changing local, state, and federal landscapes, the assessment may change frequently). The variables underlying the rankings fall into six broad categories: starting a business; employing workers; obtaining electricity, land and space use; and paying taxes and resolving insolvency.