Businesses are constantly challenged by the ever-evolving landscape of labor and employment law, with new legislation and judicial developments occurring almost daily fueling a seemingly never-ending stream of litigation. For companies operating in multiple states, complying with this patchwork of federal, state, and local laws and developments can be daunting. Knowing these issues are a top concern for management and in-house counsel, Morrison Foerster keeps pace with this rapidly evolving landscape. MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues covering key judicial, litigation and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Co-Chair, Global Employment and Labor Practice

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Andrew Turnbull represents companies on a broad range of labor and employment litigation and counseling matters. He has successfully defended clients in complex employment litigation before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, including advising on all aspects of OFCCP compliance, creating and implementing affirmative action plans, defending OFCCP audits and onsite investigations, conducting mock pay equity audits, drafting and developing business ethics policies and programs, and complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act.

Andrew Turnbull

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MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues, covering key judicial, litigation, and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits. To learn more about our capabilities, please visit the <a href="https://www.mofo.com/capabilities/employment-labor" target="_blank">Employment + Labor</a> practice page and read about our <a href="https://www.mofo.com/people?practices=Employment%20%2B%20Labor" target="_blank">Team</a>.

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Fourth Circuit Stays Injunction of Trump DEI Executive Orders

President Trump Rescinds Affirmative Action for Federal Contractors and Requires Enforcement Plan to End Unlawful DEI at Private Companies

FAR Council Withdraws “Pay Equity and Transparency” Proposed Rule

The “Preventative Duty”: New Law Places Active Duty on Employers in the UK to Prevent Sexual Harassment in the Workplace

Good News for Employers: Texas Court Blocks FTC’s Non-Compete Ban

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On December 2, 2021, OFCCP announced that it was launching its Affirmative Action Program Verification Initiative (the AAP VI), requiring all federal supply and service contractors and subcontractors to certify annually whether they have developed and maintained an affirmative action program (AAP) for each of their establishments or functional units.  OFCCP has created a new “<a href="https://www.dol.gov/agencies/ofccp/contractorportal?utm_medium=email&utm_source=govdelivery">Contractor Portal</a>” for contractors to make those certifications and for contractors to submit their AAPs to OFCCP during compliance evaluations. Before now, federal contractors and subcontractors have not been required to certify to OFCCP that they have developed and maintained AAPs.  Although prime contractors have to certify whether they have developed AAPs in the System for Award Management, historically, OFCCP has had no process for ensuring that contractors and subcontractors have developed and maintained AAPs for each of their covered establishments.  As we <a href="https://govcon.mofo.com/labor-employment/ofccp-seeks-comments-on-annual-aap-certification-proposal/">previously reported</a>, in September 2020, OFCCP sought comments on launching the AAP VI.  Since then, OFCCP sought and received approval from the Office of Management and Budget for the AAP VI, including a <a href="https://f.hubspotusercontent10.net/hubfs/4352717/AAVI_User_Guide_for_Contractors.pdf">User Guide</a> and an <a href="https://f.hubspotusercontent10.net/hubfs/4352717/OFCCP%20AAVI%20Admin%20Guide%202.04.2021.4PM.pdf">Administrator Guide</a>. With the implementation of the AAP VI, OFCCP believes it will now have the information to ensure “that all covered contractors are meeting their obligation to develop and maintain written AAPs.”  Under the new AAP VI, supply and service contractors who meet the thresholds for having to create AAPs must certify in the Contractor Portal by June 30, 2022, that they have developed AAPs for each establishment (or functional unit, if the contractor has an OFCCP‑approved functional affirmative action plan). Contractors will have a few months before they can register and start certifying compliance.  The key dates are as follows:<ul><li>On February 1, 2022, OFCCP will allow contractors to begin registering for access to the Contractor Portal.  If OFCCP has contact information for a contractor, it will send an email inviting the contractor to register for the Contractor Portal.</li><li>On March 31, 2022, contractors can start to certify that they have developed and maintained AAPs.</li><li>By June 30, 2022, contractors must complete their certifications.</li></ul>OFCCP has also provided <a href="https://www.dol.gov/agencies/ofccp/faqs/contractorportal">FAQs</a> regarding the Contractor Portal.  Some notable points from those FAQs include the following:<ul><li>Contractors that are only construction contractors and not also supply and service contractors are not required to certify compliance, and they should not register for the portal.</li></ul><ul><li>New contractors have 120 days to develop their AAP(s), and they must register and certify compliance in the Contractor Portal within 90 days of developing their AAP(s).</li></ul>Although OFCCP confirms that certifications will not exempt contractors from OFCCP compliance evaluations, failure to submit a certification or certifying that the contractor has not developed or maintained an AAP could lead to contractors being selected for a compliance evaluation or other enforcement actions.  According to Bloomberg Law, an OFCCP official stated that:OFCCP will be able to use contractors’ annual certification response as an additional criterion for the agency’s neutral scheduling process, so that contractors who certify they are not in compliance will be more likely to be scheduled for a full compliance review.OFCCP states that it will provide more information about the AAP VI in the coming months, including “how-to videos” and a “User Guide.”  For now, there remain a number of unanswered questions, including what AAP plan years contractors will need to certify, how OFCCP will use the certification process for scheduling of compliance evaluations or enforcement actions, and whether OFCCP will require contractors to provide any additional details about their AAPs beyond certifying that they have created and developed them.

Andrew co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies.

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Ready, Set, Certify: OFCCP Releases Mandatory Annual AAP Certifications

Ready, Set, Certify:  OFCCP Releases Mandatory Annual AAP Certifications

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On December 2, 2021, OFCCP announced that it was launching its Affirmative Action Program Verification Initiative (the AAP VI), requiring all federal supply and

Since our October 14, 2021 webinar, much has developed in the rapidly evolving compliance world of <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/" target="_blank">Executive Order 14042</a>, Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO” or “EO 14042”). In case you missed it, we issued two prior alerts on some of these developments (available <a href="https://govcon.mofo.com/labor-employment/new-task-force-guidance-signals-some-flexibility-for-contractors/" target="_blank">here</a> and <a href="https://www.mofo.com/resources/insights/211108-federal-court-temporarily-halts-osha-ets-eo" target="_self">here</a>), the latest of which discusses the Occupational Health and Safety Administration (OSHA) November 4, 2021 emergency temporary standards (ETS) currently stayed by the U.S. Court of Appeals for the Fifth Circuit. These standards impose similar—but separate—COVID-19 vaccination and testing requirements for companies with 100 or more employees, regardless of whether or not the companies are federal contractors.To learn more, read our <a href="https://www.mofo.com/resources/insights/211112-untangling-the-vaccine-mandate.html?utm_source=publication&utm_medium=email">client alert</a>.

J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. 

J. Ward

Alex is co-chair of Morrison Foerster’s Government Contracts and Public Procurement practice. His practice covers a full range of government contracts matters, including bid protests, claims, investigations, corporate transactions, and counseling.

J. Alex Ward

Of Counsel

Jim Tucker is of counsel in Morrison & Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office.
Jim’s practice runs the gamut of litiga

James A. Tucker

Jim maintains an active practice in bid protests before the Government Accountability Office and contracting agencies and counsels clients in contract disputes and compliance obligations.

James Tucker

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Untangling the Vaccine Mandate – Updates and Answers to Frequently Asked Questions

New Guidance on COVID-19 Protocols for Contractor Employees at Federal Facilities

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Since our October 14, 2021 webinar, much has developed in the rapidly evolving compliance world of Executive Order 14042, Ensuring Adequate COVID Safety Protoco

Untangling the Vaccine Mandate – Updates and Answers to Frequently Asked Questions

Less than three days after the Occupational Health and Safety Administration (“OSHA”) released its November 4, 2021 emergency temporary standards on COVID-19 vaccines and testing (the “ETS”), on November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the ETS, citing the “grave statutory and constitutional issues with the Mandate.”  As <a href="https://www.mofo.com/resources/insights/211105-new-osha-ets-covid-19.html?utm_source=publication&utm_medium=email">previously reported</a>, the OSHA ETS mandates that by January 4, 2022, all employers with 100 or more employees have its employees be vaccinated or subject to COVID-19 testing and masking requirements by January 4, 2022.  The ETS also contains a host of other compliance obligations that employers would need to put in place by December 5, 2021, if the ETS survives legal challenge.To learn more, read our <a href="https://www.mofo.com/resources/insights/211108-federal-court-temporarily-halts-osha-ets-eo" target="_self">client alert</a>.Morrison & Foerster associate Samuel Ison contributed to the writing of this post.

Federal Court Temporarily Halts OSHA ETS—EO 14042’s New January 4, 2022 Vaccine Deadline Remains

Less than three days after the Occupational Health and Safety Administration (“OSHA”) released its November 4, 2021 emergency temporary standards on COVID-19 va

Federal Court Temporarily Halts OSHA ETS—EO 14042’s New January 4, 2022 Vaccine Deadline Remains

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its highly anticipated <a href="https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard">emergency temporary standards for COVID-19</a> (the “ETS”) along with a landing page on its website with various compliance materials, FAQs, and a pre-recorded webinar. As expected, the ETS mandates that all employers with 100 or more employees require its employees to be vaccinated or subject to COVID-19 testing and masking requirements by January 4, 2022. The ETS contains a host of other compliance obligations that employers will need to put in place by December 5, 2021, including having detailed written policies. Shortly after OSHA released the ETS, President Biden issued a <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/04/fact-sheet-biden-administration-announces-details-of-two-major-vaccination-policies/">Fact Sheet</a> announcing that the December 8, 2021, COVID-19 vaccination deadline under EO 14042 has been extended to January 4, 2022, to coincide with the OSHA ETS deadline for vaccinations. To learn more, read our <a href="https://www.mofo.com/resources/insights/211105-new-osha-ets-covid-19.html">client alert</a>.Morrison & Foerster associate Samuel Ison contributed to the writing of this post.

Unpacking the New OSHA ETS for COVID-19 Vaccines and Testing

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its highly anticipated emergency temporary standards for COVID-19 (the “E

Unpacking the New OSHA ETS for COVID-19 Vaccines and Testing

Please join us on October 14, 2021, as we discuss the latest developments on Biden's Executive Order 14042 in our upcoming webinar, "Untangling the Vaccine Mandate: Practical Steps for Contractors to Navigate Executive Order 14042," from 1:00 p.m. - 2:30 p.m. EDT. On September 24, 2021, the Safer Federal Workforce Task Force issued guidance on President Biden’s Executive Order 14042 (the “Order”), seeking to impose upon a broad swath of federal contractors and their employees various mandatory vaccine and related COVID-19 safety requirements. Contractors are now scrambling to deal with the fallout from the guidance. With the FAR Council slated to issue the FAR Clause on October 8, 2021, contractors are waiting to see whether the FAR Council will provide further limits or clarity on coverage and the requirements of the Order.Please visit the <a href="https://www.mofo.com/resources/events/211013-untangling-vaccine-mandate.html">webinar page</a> for more information on how to register.Starting on October 18, 2021, MoFo's Government Contracts group will be hosting its annual 'MoForward' event. Join MoFo's Andrew Turnbull and Sydney Cooper for their session on labor developments for federal contractors on October 19, 2021 at 1:00 p.m. EDT. The session will include discussion on the Biden Administration's key Labor and Employment developments so far, expected changes at the OFCCP in light of new leadership, the growing pressure for contractors and others to address pay equity and board diversity in their workplaces, and the trend of states (and possibly the federal government) in taking action to limit or ban the use of non-competes. For more information on MoForward, please click <a href="https://www.mofo.com/resources/events/211018-moforward-need-to-know.html">here</a>.

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Webinar: Untangling the Vaccine Mandate: Practical Steps for Contractors to Navigate Executive Order 14042

Webinar: Untangling the Vaccine Mandate: Practical Steps for Contractors to Navigate Executive Order 14042

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Please join us on October 14, 2021, as we discuss the latest developments on Biden's Executive Order 14042 in our upcoming webinar, "Untangling the Vaccine Mand

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DOL Issues Regulations for Paid Leave Under the Families First Coronavirus Response Act

Practical Considerations for Requiring Employees to Report to Work in Light of COVID-19 Stay-at-Home Orders

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On April 6, 2020, the United States Department of Labor (“DOL”) published regulations regarding the paid leave programs previ

DOL Issues Regulations for Paid Leave Under the Families First Coronavirus Response Act

On March 28, 2020, the United States Department of Labor (“DOL”) published additional guidance on nearly two dozen more “critical issues” that the DOL had not addressed in its previous guidance on the recently enacted <a target="_blank" href="https://www.congress.gov/bill/116th-congress/house-bill/6201/text">Families First Coronavirus Response Act</a> (“FFCRA”). Our March 26, 2020 report on the notable takeaways from the previous guidance can be <a target="_blank" href="https://elc.mofo.com/topics/dol-releases-first-round-of-published-guidance-on-the-families-first-coronavirus-response-act.html">found here</a>. In addition to providing a few clarifications on the previous guidance, the <a target="_blank" href="https://www.dol.gov/agencies/whd/pandemic/ffcra-questions">latest round of guidance</a> is notable for discussing the definition of a “health care provider” and “emergency responder” who may be excluded from coverage under the FFCRA. The DOL also further defines the scope of the small business exemption for purposes of exclusion from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act. The guidance also addresses whether public sector employees may take paid family and medical leave. The DOL indicated that it will continue to add guidance as these benefits go into effect on April 1, 2020.Here are a few highlights of the DOL’s updated guidance on the FFCRA:Required records for FFRCA paid leave.<a href="https://elc.mofo.com/topics/dol-releases-first-round-of-published-guidance-on-the-families-first-coronavirus-response-act.html">Our last post</a> on the DOL guidance detailed the “appropriate documentation” employers must maintain to obtain a tax credit for providing paid leave under the FFCRA. The most recent iteration of the DOL guidance relaxed that requirement, stating only that employers “should retain appropriate documentation in your records” and directing employers to consult with the Internal Revenue Service for further guidance. The DOL also added that employers are not required to provide leave if the employee has not provided materials “sufficient to support the applicable tax credit.”Similarly, employers may require employees who are taking expanded family and medical leave to provide additional documentation in support of their leave, in accordance with the current certification rules for conventional Family and Medical Leave Act (“FMLA”) leave requests.   Amount of tax credits allowed.The DOL clarified that if an employer chooses to supplement or adjust the pay mandated under the FFCRA with paid leave the employer already provided under its paid leave policy, the employer is not entitled to a tax credit for any paid sick leave or expanded family and medical leave that is not required to be paid under the FFCRA or for the amount that exceeds the limits set forth under the FFCRA.Small business exemptions under the FFCRA.For the purposes of the FFCRA, the DOL defines a small business as an employer (including a religious or nonprofit organization) with fewer than 50 employees. A small business is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 reasons when doing so would jeopardize the viability of the small business as a going concern. One of the following three conditions must be met for the small business to claim this exemption:<ol><li>The provision of paid sick leave or expanded family and medical leave would result in the small business’ expenses and financial operations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; </li> <li>The absence of the employee requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of the employee’s specialized skills, knowledge of the business, or responsibilities; or </li> <li>There are not sufficient able, willing, and qualified workers who will be available at the time and place needed to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.</li></ol>Counting employees to determine coverage under the FFCRA.Employers should use the number of employees on the day the employee’s leave would start to determine whether the employer has fewer than 500 employees for purposes of providing expanded family and medical leave and paid sick leave. The language found in the FMLA’s definition for employer does not apply to the Emergency Family and Medical Leave Expansion Act for purposes of expanded family and medical leave. COVID-19 related leave after already using FMLA leave.An eligible employee is entitled to take paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave the employee may have previously taken under the FMLA. Moreover, this paid sick leave is in addition to other leave provided under federal, state, or local law; an applicable collective bargaining agreement; or the employer’s existing company policy.If the employer was covered by the FMLA prior to April 1, 2020, the employee’s eligibility for expanded family and medical leave depends on how much FMLA leave he or she has already taken during the applicable 12-month period. During a 12-month period, employees may take only a combined total of 12 workweeks of FMLA leave for traditional FMLA-qualifying reasons and for child care as provided under the Emergency Family and Medical Leave Expansion Act. An employee who has already taken 12 workweeks of FMLA leave during the applicable 12-month period prior to requesting expanded family and medical leave will not be entitled to expanded family and medical leave during that 12-month period. If the employee takes paid sick leave concurrently with the first two weeks of expanded family and medical leave, which may otherwise be unpaid, those two weeks count toward the 12 workweeks in the 12-month period. This analysis does not apply if the employer first becomes covered under the FMLA on April 1, 2020. Definition of a “health care provider.”The new guidance defines a “health care provider” who is not entitled to paid sick leave and/or expanded family and medical leave under the FFCRA, as any employee employed at any:<ul><li>doctor’s office, hospital, health care center, or clinic;</li></ul><ul><li>post-secondary educational institution offering health care instruction;</li></ul><ul><li>medical school;</li></ul><ul><li>local health department or agency;</li></ul><ul><li>nursing or retirement facility or home; </li></ul><ul><li>home health care provider;</li></ul><ul><li>any facility that performs laboratory or medical testing; </li></ul><ul><li>pharmacy; or </li></ul><ul><li>any similar institution, employer or entity, permanent or temporary.</li></ul>This definition of a “health care provider” includes any individuals employed by an entity that contracts with the above institutions, employers, or entities to provide services or to maintain the operation of the facility, such as anyone employed by an entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. To minimize the spread of COVID-19, the DOL encourages employers to be “judicious” when using this definition to exempt health care providers from provisions of the FFCRA.Definition of “emergency responder.”An emergency responder who may be excluded from paid sick leave or expanded family and medical leave by his or her employer under the FFCRA, is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This category includes, but is not limited to: military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.As with employers of “health care providers,” the DOL also encourages employers of “emergency responders” to be judicious when exempting their employees from the provisions of the FFCRA.Public sector employees’ right to take sick leave under the FFCRA.Paid sick leave under the Emergency Paid Sick Leave Act: The DOL states that public sector employees are generally entitled to paid sick leave if they work for a public agency or other unit of government unless the employee is a health care provider or emergency responder.Paid family and medical leave under the Emergency Family and Medical Leave Expansion Act: The DOL states that if the employee is a federal employee, he or she is not likely entitled to expanded family and medical leave, as the Emergency Family and Medical Leave Expansion Act only amended Title I of the FMLA (federal employees are typically covered by Title II of the FMLA). Likewise, if the public sector employee is a health care provider or emergency responder, he or she may be excluded by the employer from being able to take expanded family and medical leave under the FFCRA.We will continue to monitor the situation as we await the DOL’s additional guidance and official regulations. As the situation continues to rapidly evolve, please keep checking our <a href="https://elc.mofo.com/" target="_blank">blog</a> for employment-related developments.

DOL Issues Newly Updated Guidance on Critical Issues for Employers Regarding the Families First Coronavirus Response Act

On March 28, 2020, the United States Department of Labor (“DOL”) published additional guidance on nearly two dozen more “critical issues” that the DOL had not a

DOL Issues Newly Updated Guidance on Critical Issues for Employers Regarding the Families First Coronavirus Response Act

Since we <a href="https://elc.mofo.com/topics/families-first-coronavirus-response-act-paid-family-sick-leave.html" target="_blank">last reported</a> on the recently enacted <a href="https://www.congress.gov/bill/116th-congress/house-bill/6201/text" target="_blank">Families First Coronavirus Response Act</a> (“FFCRA”), the U.S. Department of Labor (“DOL”) released Fact Sheets for <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave" target="_blank">employees</a> and <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave" target="_blank">employers</a> and a set of <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-questions" target="_blank">Questions and Answers</a> (“Q&As”) clarifying several issues related to the paid leave and <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions" target="_blank">posting requirements</a>. The DOL also issued guidance on its <a href="https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-1" target="_blank">initial enforcement of the FFCRA</a>. As the DOL <a href="https://www.dol.gov/newsroom/releases/whd/whd20200324" target="_blank">noted</a>, this is its “first round of published guidance.” While helpful, the DOL’s guidance is not binding law and leaves many questions unanswered. The DOL plans to publish official regulations on or before April 1, 2020.A few notable takeaways from the DOL’s recently issued guidance on the FFCRA:The FFCRA takes effect on April 1, 2020.The DOL pushed up the FFCRA’s effective date. The FFCRA’s paid leave provisions are now effective on April 1, 2020, and are scheduled to expire on December 31, 2020. The FFCRA will not apply retroactively.How to determine the coverage threshold.The FFCRA applies to private employers with less than 500 employees. The DOL says that employers should determine coverage at the time an employee takes paid leave under FFCRA. Employers should count all full-time and part-time employees within the United States, including:<ul><li>employees on leave;</li></ul><ul><li>temporary employees who are jointly employed by the employer and another company (regardless of whether the jointly-employed employees are on only one employer’s payroll); and</li></ul><ul><li>day laborers supplied by a temporary agency (regardless of whether the employer is the temporary agency or the client firm if there is a continuing employment relationship).</li></ul>Workers who are properly classified as independent contractors under the Fair Labor Standards Act (“FLSA”) are not counted for determining coverage.Related businesses can be combined for determining FFCRA coverage.Typically, a company counts only its employees (at any facility or division within the U.S.) towards the FFCRA coverage threshold. Where separate companies are part of the same corporate family (such as subsidiaries or parents) or a company has an ownership interest in another company, those companies will be considered separate employers under the FFCRA unless they can be considered joint employers under the FLSA or meet the <a href="https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FOH_Ch39.pdf" target="_blank">“integrated employer test” under the Family and Medical Leave Act of 1993</a> (“FMLA”). The DOL’s recent joint employer final rule identifies various factors used to determine whether two entities are joint employers. The integrated entity test also considers several factors, including common management, interrelation between operations, centralized control of labor relations, and degree of common ownership or financial control. Separate employers will need to determine whether they can (or even would want to) satisfy either of those tests for purposes of potentially exceeding the FFCRA threshold. When considering that issue, related companies should be mindful that determination of joint employer or integrated entity status can result in joint and several liability for claims under the FLSA and FMLA.Exemptions for small businesses.Businesses with less than 50 employees may be able to obtain an exemption from the FFCRA when compliance would jeopardize the viability of the business as a going concern. Although employers can be reimbursed for FFCRA paid leave through tax credits, many small businesses may not have the liquidity to pay for the leave up front. Other than stating that these employers should document why the exemption should apply to them, the DOL essentially leaves it to small businesses to determine if the exemption might apply. DOL’s regulations may provide additional guidance.FFCRA paid leave is not required for closures or furloughs.The DOL clarifies that employers are not required to pay either type of FFCRA leave if they close their worksite or furlough employees. This is true whether the closure of the worksite or furlough was due to lack of business or because of a “Federal, State or local directive.” If an employee is on paid FFCRA leave when the employer closes the worksite, the employer only has to pay for the paid leave the employee used before the worksite closed.Employees cannot use FFCRA paid leave for reduced hours they lost.Employees whose work hours are reduced may not use either type of FFCRA leave for the hours they no longer are scheduled to work. The DOL said this is because those employees are not prevented from working those hours due to a COVID-19 qualifying reason, even if the reduced hours were “somehow related to COVID-19.”Calculating hours for part-time employees.Under the FFCRA, a part-time employee is entitled to leave for his or her average number of work hours in a two-week period. DOL instructs employers to calculate the hours of leave based on the number of hours the employee is normally scheduled to work. For example, if a part-time employee is regularly scheduled 25 hours per week, the employee would be eligible for up to 25 hours of paid leave per week (or 50 hours over a two-week period).Where the normal hours scheduled are unknown or the part-time employee’s schedule varies, employers are allowed to either: (1) use a six-month average to calculate the average daily hours; or (2) if an employee has been employed for less than six months, use the number of hours that the company and the employee agreed upon at hiring or the average hours per day the employee was scheduled to work during their term of employment.Part-time employees may take paid sick leave for the calculated number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to 10 weeks after that.Overtime hours are included in calculating the amount of FFCRA paid leave.The DOL said that employers must include overtime in calculating the amount to pay employees must receive for both types of FFCRA paid leave, but overtime premiums do not need to be included.  For the FMLA expansion leave, employers are required to pay an employee for hours the employee would have normally scheduled to work even if that is more than 40 hours a week. The emergency paid sick leave, however, requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week, but the total number of hours paid is capped at 80.Calculating the regular rate.DOL states that the regular rate of pay used to calculate both types of FFCRA paid leave is the average of an employee’s regular rate over a period of up to six months prior to the date on which the employee takes leave.  For employees who have worked for their employer for less than six months, the regular rate used to calculate their leave is the average of their regular rate of pay for each week that they have worked for their current employer. Commissions, tips, and piece rates must be incorporated into determining the regular rate.FFCRA leave may be taken intermittently only with the employers agreement.Although the DOL encourages employers to allow employees to take FFCRA paid leave intermittently, it does not require it.Required records for FFCRA paid leave.Employers wanting to obtain a tax credit for providing paid leave under FFCRA must maintain the following records:<ul><li>Paid sick leave: Employers must require employees taking paid sick leave to provide appropriate documentation in support of the reason for the leave, including: the employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested. Documentation of the reason for the leave will also be necessary, such as the source of any quarantine or isolation order, or a copy of the federal, state or local quarantine or isolation order related to COVID-19 applicable to the employee. </li></ul><ul><li>Paid FMLA expansion leave: Employers must require employees taking paid FMLA expansion leave to provide appropriate documentation similar to a conventional FMLA request, such as a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider. </li></ul>The DOL advises employers to consult with the Internal Revenue Service (“IRS”) for applicable forms, instructions, and information on the procedures for obtaining tax credits for FFCRA paid leave.Employees cannot collect unemployment while on FFCRA leave.Employees who are on FFCRA leave are not eligible for unemployment insurance. The DOL, however, notes that partial unemployment benefits may be available to employees whose hours or pay have been reduced under certain state law.The DOL provided guidance on the posting requirements.The DOL issued <a href="https://www.dol.gov/agencies/whd/pandemic" target="_blank">model notices</a> of the requirements for both types of FFCRA paid leave. The DOL indicates that all covered employees (including small businesses) must post the notices in a conspicuous place where employees can easily see them. A covered employer can satisfy the posting requirement by emailing or direct mailing the notices to employees, or posting the notices on an employee information internal, or external, website. The notices do not have to be posted in multiple languages or shared with recently laid-off individuals.The DOL will not bring enforcement actions against employers before April 17, 2020, so long as they act “reasonably” and “in good faith.”In order to enable covered employers to come into compliance with the FFCRA, the DOL said it will not enforce the FFCRA from March 18 through April 17, 2020, and would not pursue enforcement actions against covered employers, so long as the employer has made reasonable, good faith efforts to comply with the FFCRA. The employer will be found to have acted “reasonably” and “in good faith” when all of the following facts are present:<ul><li>The employer remedies any violations, including by making all affected employees whole as soon as practicable.</li></ul><ul><li>The violations of the FFCRA 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 . . .”).</li></ul><ul><li>The DOL receives a written commitment from the employer to comply with the FFCRA in the future.</li></ul>The DOL noted that after stay of enforcement is lifted on April 17, 2020, it intends to fully enforce any violations of the FFCRA.

DOL Releases "First Round of Published Guidance" on the Families First Coronavirus Response Act

Since we last reported on the recently enacted Families First Coronavirus Response Act (“FFCRA”), the U.S. Department of Labor (“DOL”) released Fact Sheets for 

DOL Releases "First Round of Published Guidance" on the Families First Coronavirus Response Act

On March 18, 2020, Governor Cuomo of New York signed into law a <a href="https://www.nysenate.gov/legislation/bills/2019/a10153">statewide quarantine leave bill</a> related to the COVID-19 pandemic (the “New York law”).  The New York law went into effect immediately on March 18 and provides paid leave, unpaid leave, and expands New York’s paid family leave and disability benefits to employees who are subject to a “mandatory or precautionary order of quarantine or isolation.”  On the same date, <a href="https://elc.mofo.com/topics/families-first-coronavirus-response-act-paid-family-sick-leave.html">President Trump signed into law the federal Families First Coronavirus Response Act (“FFCRA”)</a>.  We have been counseling clients around the country regarding a variety of employment issues related to COVID-19 and provide this article as a useful tool for our clients with employees in New York in particular. <h4>U.S. DEPARTMENT OF LABOR PUBLISHES FFCRA GUIDANCE</h4>As a preliminary matter, we note that the U.S. Department of Labor (“DOL”) confirmed in <a href="https://www.dol.gov/agencies/whd/pandemic">its regulatory guidance issued yesterday, March 24</a>, that FFCRA leave and benefits will go into effect on April 1, 2020.  We will provide a more detailed discussion of the DOL’s guidance in a separate alert, but briefly note here that it answers several, but not all, previously open questions.  One potential ambiguity that may remain unresolved is whether shelter in place (“SIP”) or stay at home (“SAH”) orders that have now been implemented by the governors of a growing list of states, including but not limited to, California and New York, constitute a “quarantine or isolation order related to COVID-19” for purposes of the FFCRA.  The March 24 DOL guidance does not address this question.  But the DOL is expected to be publishing further guidance as we get closer to the April 1 FFCRA effective date, so this is certainly an issue about which employers should work closely with legal counsel before making decisions.<h4>INTERPLAY OF THE FFCRA AND THE NEW YORK LAW</h4>We provide further details about the New York law and its interplay with the FFCRA below.OverviewThe benefits available to employees under the New York law differ depending on the size and/or net income of the employer.  The FFCRA applies to employers with fewer than 500 employees, but the DOL can exempt employers with fewer than 50 employees if providing paid leave would jeopardize the viability of the business.  The New York law expressly provides that an employee covered under both the New York law and any federal law or regulation related to COVID-19 is entitled to the difference between the benefits under the New York law and the benefits available, if any, under the federal law or regulation. Eligible Employees The New York law applies to employees who are “subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the department of health, local board of health, or any government entity duly authorized to issue such order due to COVID-19.” Similar to the FFCRA open issue noted above, the New York law is vague on what constitutes a “mandatory or precautionary order of quarantine or isolation.”  But guidance from the New York State Department of Health arguably suggests that mandatory or precautionary quarantine or isolation applies to persons who have tested positive for COVID-19, been in close contact with or have had proximate exposure to someone who has tested positive, or traveled to China, Iran, Japan, South Korea, or Italy while COVID-19 was prevalent.  If that were the case, Governor Cuomo’s recent Executive Order 202.8, which requires all non-essential businesses and non-profit entities in New York to fully reduce their in-person workforce at any work location, would not fit within the meaning of “mandatory or precautionary order of quarantine or isolation” under the new law.  We may expect further guidance from the New York State Department of Labor Commissioner on this topic.The New York law contains carve-outs for certain employees:<ul><li>It does not apply to any employee who is deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work, including telework, while under a mandatory or precautionary order of quarantine or isolation.  </li></ul><ul><li>An employee shall not receive paid sick leave benefits or other paid benefits provided by the New York law if the employee is subject to a mandatory or precautionary order of quarantine after non-work, voluntary travel to a high-risk country as determined by the Centers for Disease Control and Prevention and if the employee was provided notice of the travel health warning and this carve-out.  Such employee is entitled to use accrued leave provided by the employer, or to the extent that the employee does not have accrued leave or sufficient accrued leave, unpaid sick leave for the duration of the quarantine or isolation order.</li></ul>Unlike the FFCRA, the New York law does not provide paid sick leave to employees who are unable to work because they are experiencing symptoms of COVID-19 and seeking a medical diagnosis or even have been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19, among other reasons. Covered EmployersThe chart below details the amount of paid sick leave available to an eligible employee based on the size and/or net income of the employer.  Of significance is that unlike the FFCRA, the New York law applies to employers with 500 or more employees.  Under the New York law, the number of employees is measured as of January 1, 2020, and the net income refers to the previous tax year. Eligible employees do not receive both the paid sick leave available under the New York law and the paid sick leave available under the FFCRA.  If the New York law provides them with greater benefits, they are entitled to the difference between the benefits under the New York law and the benefits available under the FFCRA. The New York law is silent on how each day of paid sick leave pay should be calculated and whether part-time employees are entitled to the same amount of paid sick leave as full-time employees.  We may also expect to see further guidance from the New York State Department of Labor Commissioner on these topics, as the new law authorizes the Labor Commissioner to issue guidance and regulations, including “standards for the use, payment, and employee eligibility of sick leave pursuant to this act.”<table style="width: 0px;" cellpadding="0" cellspacing="0" border="0"><thead><tr><td valign="top" width="155" style="width: undefined%; height: auto;">Employer Size</td><td valign="top" width="231" style="width: undefined%; height: auto;">New York Law</td><td valign="top" width="231" style="width: undefined%; height: auto;">FFCRA</td></tr></thead><tbody><tr><td valign="top" width="155" style="width: undefined%; height: auto;">500 or more employees</td><td valign="top" width="231" style="width: undefined%; height: auto;">14 days of paid sick leave to each eligible employee</td><td valign="top" width="231" style="width: undefined%; height: auto;">Not applicable</td></tr><tr><td valign="top" width="155" style="width: undefined%; height: auto;">100 or more employees but fewer than 500 employees</td><td valign="top" width="231" style="width: undefined%; height: auto;">14 days of paid sick leave to each eligible employee</td><td valign="top" width="231" style="width: undefined%; height: auto;">Up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period</td></tr><tr><td valign="top" width="155" style="width: undefined%; height: auto;">Between 50 employees and 99 employees</td><td valign="top" width="231" style="width: undefined%; height: auto;">Five days of paid sick leave to each eligible employee, and unpaid leave until the termination of the quarantine or isolation order</td><td valign="top" width="231" style="width: undefined%; height: auto;">Up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period</td></tr><tr><td valign="top" width="155" style="width: undefined%; height: auto;">Between 11 and 49 employees</td><td valign="top" width="231" style="width: undefined%; height: auto;">Five days of paid sick leave to each eligible employee, and unpaid leave until the termination of the quarantine or isolation order</td><td valign="top" width="231" style="width: undefined%; height: auto;">Potential exemption from the DOL, but otherwise, up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period</td></tr><tr><td valign="top" width="155" style="width: undefined%; height: auto;">10 or less employees and a net income of greater than $1 million</td><td valign="top" width="231" style="width: undefined%; height: auto;">Five days of paid sick leave to each eligible employee, and unpaid leave until the termination of the quarantine or isolation order</td><td valign="top" width="231" style="width: undefined%; height: auto;">Potential exemption from the DOL, but otherwise, up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period</td></tr><tr><td valign="top" width="155" style="width: undefined%; height: auto;">10 or less employees and a net income of $1 million or less</td><td valign="top" width="231" style="width: undefined%; height: auto;">Unpaid leave until the termination of the quarantine or isolation order</td><td valign="top" width="231" style="width: undefined%; height: auto;">Potential exemption from the DOL, but otherwise, up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period</td></tr></tbody></table> Existing Sick Leave BenefitsThe New York law provides that “[s]uch leave shall be provided without loss of an officer or employee’s accrued sick leave.”  It is unclear whether “accrued sick leave” refers to existing mandatory sick leave, such as mandatory sick leave for employees in New York City and Westchester County, and/or to existing employer policies.  The FFCRA is clearer on the topic; the FFCRA does not diminish the right and benefits of an employee under “other Federal, State, or local law,” “collective bargaining agreement,” or “existing employer policy.”Anti-Retaliation and Job RestorationThe New York law provides that an employer shall not “discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee because such employee has taken leave pursuant to this act.”  The New York law also requires an employer to restore an employee who has returned to work following leave taken under the New York law to his or her “position of employment held by the employee prior to any leave taken pursuant to this act with the same pay and other terms and conditions of employment.” The paid sick leave portion of the FFCRA provides that it is unlawful for an employer “to discharge, discipline, or in any other manner discriminate against an employee” who takes leave under the FFCRA and “has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act (including a proceeding that seeks enforcement of this Act), or has testified or is about to testify in any such proceeding.”  The FFCRA is silent on the topic of job restoration as to paid sick leave, but in its Family and Medical Leave Act (“FMLA”) expansion portion, it expressly exempts an employer with fewer than 25 employees from FMLA’s job restoration section if the employer meets certain conditions.  Paid Family Leave and Disability Benefits The New York law expands paid family leave and disability benefits to employees of employers with fewer than 100 employees.  It does not address whether these expanded benefits are available to employees of employers with 100 or more employees.Whereas paid family leave benefits are available only to employees who need to take a leave due to family issues, the New York law expands the definition of “family leave” for eligible employees to include: any leave taken by an employee from work when an employee is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19; or to provide care for a minor dependent child of the employee who is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19.  The New York law also expands the definition of “disability” to include: any inability of an employee to perform the regular duties of his or her employment or the duties of any other employment which his or her employer may offer him or her as a result of a mandatory or precautionary order of quarantine or isolation due to COVID-19; and when the employee has exhausted all paid sick leave provided by the employee’s employer under the new law. Employees who meet both definitions are entitled to collect paid family leave and disability benefits concurrently, up to $840.70 in paid family leave and $2,043.92 in disability benefits per week.

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Eric Akira Tate co-chairs the firm’s Global Employment and Labor Group. He represents technology and other companies in bet-the-company trade secrets and employee mobility cases.

Eric Akira Tate

Eric Tate chairs the firm’s Global Employment and Labor Group. He has represented technology and other companies in the biggest and most highly-publicized trade secrets and employee mobility cases across multiple industries. Eric also represents companies in whistleblower, wage and hour, and other employment litigation.

Eric Tate

New York COVID-19 Paid Leave and Recent Federal Coronavirus Developments

On March 18, 2020, Governor Cuomo of New York signed into law a statewide quarantine leave bill related to the COVID-19 pandemic (the “New York law”).  The New 

New York COVID-19 Paid Leave and Recent Federal Coronavirus Developments

On March 7, 2019, the U.S. Department of Labor (the “DOL”) issued a Notice of Proposed Rulemaking, proposing to raise the minimum salary level for employees to be exempt from overtime requirements under the Fair Labor Standards Act (“FLSA”).  Under current FLSA regulations, employees are entitled to overtime for any hours they work over 40 in a workweek unless they qualify for an exemption based on their job duties and are paid a minimum annual salary of at least $23,660 (or $455 per week). While the proposed rule leaves the job duty requirements for the FLSA exemptions unchanged, it proposes to raise the minimum annual salary to $35,308 (or $679 per week) for employees classified as exempt from the FLSA under the executive, administrative, professional, outside sales, and computer employee exemptions.  The DOL estimates that this change would make an additional 1.1 million employees eligible for overtime pay.The proposed rule rescinds a previous rule issued in May 2016 by the DOL under the Obama administration, which proposed to raise the FLSA minimum annual salary to $47,476 with automatic increases of the minimum salary threshold every three years.  A Texas federal court enjoined that rule, and the U.S. Court of Appeals for the Fifth Circuit ultimately dismissed the DOL’s appeal of that order, at the DOL’s request, in September 2017. Although the new proposed rule establishes a more modest threshold than the previous administration’s rule, the proposed minimum salary level is nearly 50% more than the current salary level of $23,660.  The proposed rule will allow up to 10% of the new minimum salary level to be satisfied using nondiscretionary compensation, such as bonuses and commissions, so long as those amounts are paid at least annually.  If adopted, the proposed rule will require the DOL to propose potential increases to the salary threshold every four years through a notice and comment process.  The proposed rule also contemplates raising the minimum annual salary under the highly-compensated workers exemption from $100,000 to $147,414. Practical Implications For now, the proposed changes remain exactly that – proposed.  Employers do not need to start reclassifying employees or raising salaries just yet.  The proposal will undergo a 60‑day notice and comment period, during which the DOL will allow interested parties to submit comments.  The DOL anticipates the final rule becoming effective in January 2020.  The rule will likely be subject to legal challenges by both worker advocate and business industry groups.  Whether those challenges will be successful or the DOL will make substantive changes to the final version of the rule remains to be seen. In the meantime, employers can take practical steps to prepare for the potential changes.  Because it can take time to understand the full financial and administrative impact of these changes, companies should consider whether it makes sense to start assessing exempt employees who are below the proposed salary threshold.  Employers have several options for those employees, including reclassifying their positions as nonexempt, raising their salaries to be in line with the new minimum salary threshold, or capping the hours those employees work each week to avoid accruing overtime.  The proposed rule may also provide an opportunity for employers who have not recently audited their exempt workforce to confirm that all exempt positions, especially those paying close to the current or proposed minimum annual salary threshold, are correctly classified.  Such an audit will not only help employers identify and correct potential misclassification issues, but it will also allow the company to determine which positions might need to be adjusted based on the proposed rule. Although the proposed rule will likely impact many U.S. employers, companies must continue to review their compliance with state wage and hour exemption requirements, which can be more stringent than the FLSA.  For example, California employees must earn a minimum annual salary of $49,920 ($45,760 for employers with 25 or fewer employees) to be properly classified as exempt from the California overtime laws.Morrison & Foerster LLP will keep clients updated on developments with the proposed rule.  Please reach out to our Employment & Labor Group with questions.

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What Do the DOL’s Proposed Changes to the FLSA Overtime Rules Mean for Employers?

What Do the DOL’s Proposed Changes to the FLSA Overtime Rules Mean for Employers?

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On March 7, 2019, the U.S. Department of Labor (the “DOL”) issued a Notice of Proposed Rulemaking, proposing to raise the minimum salary level for employees to 