As many employers implement a COVID-19 vaccination-or-weekly-testing mandate (soon to be required of all employers with 100+ employees, as we discussed here), a recurring issue is whether the time that employees spend getting that weekly test must be paid under federal and state wage and hours laws. And the answer is a lawyerly, “Well, it depends.” (Of course).
Continue Reading Do Employers Have to Pay For COVID-19 Testing Time?
Beyond Voluntary Paid Leave: What Are the Other Employment-Related Provisions of the Coronavirus Relief Act?
In addition to the voluntary extension of the Families First Coronavirus Response Act’s paid leave provisions, which we discussed in our December 22, 2020 E-lert, the Coronavirus Response and Relief Supplemental Appropriations Act (the Act), included in the massive (5593 page) stimulus bill signed into law on December 27, 2020, expands or extends relief benefits under the Coronavirus Aid Relief and Economic Security (CARES) Act, discussed in our March 27, 2020 and March 30, 2020 E-lerts. Specifically, the Act clarifies the tax treatment of Paycheck Protection Program (PPP) loans, permits second PPP loans to certain borrowers, expands eligibility for first PPP loans, adds to the list of forgivable expenses; expands the employee retention credit, and extends enhanced unemployment benefits.
Continue Reading Beyond Voluntary Paid Leave: What Are the Other Employment-Related Provisions of the Coronavirus Relief Act?
My Zoom Trial
My Zoom Trial
Last week I had my first Zoom trial in state court. It was a bench trial in a breach of contract case. I worked from my home office.
Treasury Department Provides Guidance on President Trump’s Deferral of Payroll Taxes
The U.S. Department of the Treasury issued, on August 28, 2020, a Notice concerning President Trump’s Presidential Memorandum concerning employers’ deferral of payroll taxes. Here are the key points:
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President Issues Memoranda on Payroll Taxes and Unemployment Insurance
President Trump issued, on August 8, 2020, Memoranda and Executive Orders concerning unemployment insurance, payroll tax withholding, evictions, and student loans. Below, we discuss the two employment-related Presidential Memoranda (which have been incorrectly designated Executive Orders in the media, although there is little technical distinction between the two). Neither requires immediate action by employers.
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Selecting Employees for Recall or Rehire
In the COVID-19 recession, many employers made reductions in force en masse, thus avoiding selection decisions that might be challenged as discriminatory. If the same employers recall or rehire employees en masse, they will continue to avoid such decisions. But what if the employer’s need to recall or rehire is partial or gradual, such that some employees are brought back before others? Such choices can give rise discrimination claims. To protect itself, an employer will need to apply and document a non-discriminatory method of choosing among employees.
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Salary Add-Ons Do Not Bar Fluctuating Workweek Overtime, U.S. DOL Rules
Bonuses, shift differentials, hazard pay, commissions and other add-ons do not preclude use of the fluctuating workweek method of computing overtime, according to a U.S. Department of Labor interpretive regulation issued May 20, 2020. 
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DOL Streamlines Its Regulation Interpreting Commission Sales Exemption from Overtime
Apparently inspired by the tidying up trend, the Department of Labor threw out two sections of its interpretation concerning the commission sales exemption from overtime that no longer gave it joy. The commission sales exemption covers sales employees who are primarily paid by commission. To come under the exemption, the employee must be employed in a “retail or service” establishment, must earn at least 1.5 times the minimum wage, and more than half the employee’s compensation for a representative period (not less than one month) must represent commissions.
Continue Reading DOL Streamlines Its Regulation Interpreting Commission Sales Exemption from Overtime
To Avoid Job and Wage Cuts CARES Act Funds Payrolls
In our March 27 E-lert, we explained important provisions of the CARES Act. One of them provides small businesses and nonprofits with forgivable loans to fund payroll and other costs incurred between February 15 and June 30, 2020 as an incentive to keep employees on the payroll. Under the “Paycheck Protection Program” the federal government will essentially give an employer 2.5 times its monthly payroll, to use for paying wages, rent, mortgage interest and utilities.
Continue Reading To Avoid Job and Wage Cuts CARES Act Funds Payrolls
Coronavirus Aid Relief and Economic Security Becomes Law
On March 27, President Trump signed the Coronavirus Aid Relief and Economic Security (CARES) Act, a $2 trillion bill that contains provisions that will provide relief to businesses and individuals negatively impacted by the recent pandemic.
Continue Reading Coronavirus Aid Relief and Economic Security Becomes Law