On August 8, 2020, President Donald Trump issued a memorandum, which establishes a “lost wages assistance program” to help workers affected by the COVID-19 pandemic by dipping into the U.S. Department of Homeland Security’s (DHS) Disaster Relief Fund (DRF).
An increase in the number of scams involving false unemployment benefits claims are emerging in Nevada and across the country. Third parties are filing claims for unemployment insurance benefits using the names and personal information of employees who have not lost their jobs. They are often using accurate personal information, including Social Security numbers.
On July 16, 2020, the Wage and Hour Division of the U.S. Department of Labor (DOL) published new efforts to improve management of leave under the Family and Medical Leave Act of 1993 (FMLA).
On July 8, 2020, the Internal Revenue Service (IRS) released guidance for employers on reporting qualifying wages paid to employees under the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA). Both laws are part of the “phase one” coronavirus legislation, the Families First Coronavirus Response Act (FFCRA), passed on March 18, 2020.
On May 6, 2020, Governor Gavin Newsom of California issued Executive Order (EO) N-62-20, creating a temporary rebuttable presumption that employees working outside of their homes who test positive for COVID-19, the disease caused by SARS-CoV-2, may receive workers’ compensation benefits. In doing so, the governor simplified the process for sick employees to seek certain wage replacement benefits, and therefore sought to encourage ill employees to stay home to reduce the spread of COVID-19.
As most employers are aware, Nevada has a two-tier minimum wage system. Currently, Nevada employers are required to pay their employees a minimum of $8.25 per hour unless they qualify to pay the lower tier minimum wage rate of $7.25 per hour. Employers seeking to qualify for the lower tier minimum wage must meet the following requirements: (1) the employer must offer qualifying health insurance benefits; (2) those benefits must be offered to the employee and any dependents; (3) the employee’s share of the cost of the premium for health insurance benefits cannot exceed 10 percent of the employee’s income; and (4) the employer must provide a benefit in the form of health insurance at least equivalent to the one dollar per hour in wages that the employee would otherwise receive. Nevada employers that believe they qualify to pay the lower minimum wage should consider reviewing their health insurance benefits to ensure the benefits meet the stringent requirements of Nevada Administrative Code sections 608.102 and 608.104.
On June 8, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) published its revised fluctuating workweek methodology regulation for calculating overtime in the Federal Register. The new final rule goes into effect on August 7, 2020.
In response to the ongoing COVID-19 pandemic and its continued impact on daily life, Governor Gavin Newsom issued Executive Order (EO) N-63-20 on May 7, 2020, extending certain statutory and regulatory deadlines for individuals, businesses, and governmental agencies in California. In addition to other temporary changes, EO N-63-20 extends the time for employees to file certain claims for unpaid wages with the state labor commissioner, the time for the state to issue certain workplace safety citations under the California Occupational Safety and Health Act, and the time for employers to appeal such citations.
Oregon employers feeling the financial strain of economic disruptions caused by the COVID-19 pandemic are bracing themselves for another impact. On July 1, 2020, Oregon’s minimum wage increase will take effect.
On April 30, 2020, the Texas Workforce Commission (TWC) issued guidance identifying the circumstances in which an employee may remain eligible for the receipt of unemployment benefits despite the employee’s refusal of an offer to return to work. These circumstances included, for example, an individual being considered high risk due to his or her age (65 or older) or being diagnosed with COVID-19 and not having recovered.
Effective with the May 19, 2020, publication in the Federal Register, the U.S. Department of Labor’s (DOL) Wage and Hour Division revokes the arbitrary lists it created in 1961 identifying industries that may, or would not, qualify as retail or service in nature “for purposes of an exemption from overtime pay applicable to commission-based employees.”
On April 30, 2020, the Supreme Court of California issued its decision in Nationwide Biweekly Administration, Inc. v. Superior Court of Alameda County, a case that received a fair amount of attention in 2019 when it seemed possible the court might allow claims under California Business & Professions Code Sections 17200 et seq. and 17500 et seq. (commonly called the unfair competition law (UCL)) to be tried by jury.
For the last several months, employers have been forced to learn how COVID-19 spreads, how to maintain or resume safe work environments, and how to navigate a complex web of new and existing laws and regulations implicated by the pandemic. Employers have also had to contend with a growing wave of COVID-19–related employment litigation.
The “shelter in place” or “stay-at-home” orders that numerous states have issued in response to the COVID-19 pandemic have prompted some employers to require that their employees work remotely from their homes. As states roll back these orders, some employers will continue to have employees telecommute as they prepare their return-to-work strategies. Working from home or telecommuting may create a business presence in a state that establishes nexus, obligating nonresident employers to withhold state and local payroll taxes.
On May 4, 2020, Minnesota Governor Tim Walz signed Emergency Executive Order (EO) 20-50, which temporarily suspends the service of wage garnishment summonses in Minnesota for consumer debts originating “from the purchase of goods or services purchased primarily for a personal, family, or household purpose, and not for a commercial, agricultural, or business purpose.”
As daily headlines have shown, the economic fallout from the COVID-19 pandemic has led businesses of all types to announce dramatic changes in workforce levels and employee pay. Many of these companies have made the decision to reduce the salaries they pay to their exempt employees.
In the early stages of the COVID-19 pandemic, inconsistent reports claimed everything from children being immune to COVID-19 to children being more vulnerable to the virus to children acting as asymptomatic carriers. More recently, the CDC has reported that “[w]hereas most COVID-19 cases in children are not severe, serious COVID-19 illness resulting in hospitalization still occurs in this age group.” The CDC’s latest guidance states that not only can children contract the virus, but the “prevalence of asymptomatic SARS-CoV-2 infection and duration of pre-symptomatic infection in children are not well understood.” It seems clear that like asymptomatic adults, asymptomatic children have not, at this time, undergone mass testing.
Virginia has long billed itself as a business-friendly state with low taxes and commonsense employment regulations. But recent changes—largely adopted with little fanfare or scrutiny—are poised to revolutionize the labor and employment landscape in Virginia. These changes—compounded by the likely recession resulting from the COVID-19 pandemic—will present tremendous challenges for Virginia employers.
Although the Supreme Court of the United States has not yet taken up the issue, California courts routinely hold an employee cannot be compelled to submit to arbitration an action seeking penalties under the Private Attorneys General Act of 2004 (PAGA), although the employee may be compelled to arbitrate his or her individual wage claims. In determining whether a litigant seeks individual damages and therefore may be compelled to arbitrate wage claims, does the plaintiff’s Labor and Workforce Development Agency (LWDA) notice letter control?
We first wrote about Philadelphia’s Fair Workweek Employment Standards Ordinance shortly after it was signed into law on December 20, 2018. Now, with the Mayor’s Office of Labor having issued final regulations on February 3, 2020, and the ordinance having taken effect on April 1, 2020, we offer a brief overview of the ordinance along with additional information for retailers as they implement procedures to comply with the ordinance’s provisions. Enforcement of some aspects of the ordinance, such as its good-faith estimates requirement, will not go into effect until July 1, 2020.
As COVID-19 continues to remain a critical issue across the country, an increasing number of employers that are allowed to remain open despite shelter-in-place orders may be experiencing staffing shortages. This is because employees may be increasingly absent due to mandatory or voluntary quarantines. To maintain operations, many of these employers are turning to areas of their businesses or enterprises that may have a staffing surplus, and temporarily reassigning those employees to the more essential roles vacated by employees who are absent as a result of the COVID-19 crisis.
In Viet v. Copier Victor, Inc., No. 18-6191 (March 10, 2020), the U.S. Court of Appeals for the Sixth Circuit affirmed summary judgment for Copier Victor and its founder, Victor Le, on an employee’s overtime claims under the Fair Labor Standards Act (FLSA), finding the employee’s testimony regarding the number of hours he worked on a weekly basis too vague and conclusory to withstand summary judgment.
On March 28, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division released an updated set of “Questions and Answers” (Q&As) that provide additional guidance concerning the impact of workplace closures and furloughs upon employers’ obligations to provide paid leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA).
On March 28, 2020, the Department of Labor’s (DOL) Wage and Hour Division released an updated set of questions and answers (Q&As) that provide additional guidance concerning teleworking arrangements (Q&As 17–20) and intermittent leave (Q&As 21 and 22) under the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA), both of which are included in the Families First Coronavirus Response Act (FFCRA).
On March 28, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division released an updated set of “Questions and Answers” (Q&As) that provide additional guidance concerning health care providers and emergency responders (question numbers 55, 56, and 57). The Emergency Family and Medical Leave Expansion Act (EMFLEA) and the Emergency Paid Sick Leave Act (EPSLA) authorize the DOL to issue regulations to exempt health care providers and emergency responders from eligibility for coverage under the FFCRA.
On March 26, 2020, the U.S. Department of Labor’s (DOL) announced the issuance of additional guidance related to the Families First Coronavirus Response Act (FFCRA). The guidance includes “Field Assistance Bulletin 2020-1: Temporary Non-Enforcement Period Applicable to the Families First Coronavirus Response Act” and model notices “for employers obligated to inform employees about their rights under this new law.”
On March 24, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division issued preliminary guidance for employers and employees concerning the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). Both laws are part of larger Families First Coronavirus Response Act (FFCRA) enacted on March 18, 2020.
California, Connecticut, Illinois, Pennsylvania, and New York have all issued statewide shelter-in-place orders in response to the COVID-19 pandemic, and more states may follow. Employers that do not qualify for an exemption under the applicable state order or that decide to severely curtail or shut down operations may want to consider some of the following issues.
In a 5-page summary order issued on March 5, 2020, the U.S. Court of Appeals for the Second Circuit held in Belizaire v. Ahold U.S.A., Inc., No. 19-457-cv, that the “delivery fee” paid by customers of Peapod LLC, a grocery delivery service, was not a charge purported to be a gratuity for an employee within the meaning of the New York Tip Law, codified as New York Labor Law (NYLL) § 196-d. The court reached its decision by applying the standards enunciated in the seminal Court of Appeals of the State of New York case, Samiento v. World Yacht Inc.