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DOL’s Initial Families First Guidance Throws Some Curveballs; Effective Date Now April 1

By Scott Atwood on March 26, 2020
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On March 24, 2020, the Department of Labor (“DOL”) issued the first guidance related to the new Families First Coronavirus Response Act. It answered a few questions of general interest, but a lot of questions that relate to small businesses (by that, I’m talking about businesses with under 50 employees) are still up in the air. The DOL further indicated that we should not hold our breath for any regulations before the enactment date. Instead, regulations are promised sometime in April.

New effective date

The biggest surprise was the DOL announcing that the law is now going to become effective on April 1 rather than April 2. Taking advantage of some flexible language in the Act, the DOL obviously decided that it made the most sense to make a pay-related law effective on the first day of most employers’ pay periods, rather than on the second day, which was likely to create payroll nightmares. So, April 1 it is.

Benefits are not retroactive

The DOL also made it clear that the Act did not apply retroactively. This means that someone who is on leave right now is not eligible for any of the Act’s benefits until April 1. Likewise, an employer cannot take a tax credit under the Act for any paid leave that takes place before April 1.

Employers with under 50 employees

If you are a small employer (under 50), you have been waiting for the DOL to issue the promised guidance on the standard for the “jeopardize the viability” of the business exemption. This guidance did not give that information. It did specifically say don’t send the DOL anything or any exemption requests. You are instructed to simply document your reasons why you need the exemption, and hold on to it for now. Supposedly, the answer will come with the regulations, later in April. It is certainly possible the DOL will issue some additional guidance between now and then.

Caution for large employers

If you are a larger employer, particularly one with multiple related businesses, this guidance contains important information for you to determine whether you fall under the 500-employee cap for coverage under the Act. This may be one of the few times employers are actually trying to say they are actually larger than they are. However, I caution employers watch what you ask for, because it’s possible it could be used against you later in a case such as an FLSA collective action. As always, you should consult with your employment attorney if this is an issue for your business.

Posters

Finally, the DOL announced that a workplace poster would be available by March 25. Here’s a link to the poster: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf. If you are a covered employer, you should plan to have the poster up by April 1. The DOL recognizes there are a lot of unanswered questions, and plans to give a 30-day grace period for enforcement. Employers should be wary of that, however, because the Emergency Paid Sick Leave Act allows for a private employee lawsuit. Plaintiffs’ attorneys may not see the 30-day grace period as applying to their initiation of private lawsuits.

We will be back with more updates. The Senate just passed the Stimulus bill, which could have an effect on decision making for businesses. The bill currently includes, among other things, expanded unemployment benefits and loan programs for small businesses to help them cover payroll and other expenses.

Photo of Scott Atwood Scott Atwood

From complex labor and employment counseling and litigation to general business matters, Scott has been representing the interests of entrepreneurs, public entities, and businesses of all sizes throughout the United States, including Florida and Georgia, for nearly 25 years.

More specifically, Scott has…

From complex labor and employment counseling and litigation to general business matters, Scott has been representing the interests of entrepreneurs, public entities, and businesses of all sizes throughout the United States, including Florida and Georgia, for nearly 25 years.

More specifically, Scott has extensive experience in all aspects of employment law, including Title VII, ADA, ADEA, and Section 1983 discrimination, harassment, and retaliation matters, FMLA leaves issues, and FLSA and state law wage situations. He also assists his clients in whistleblower claims and non-compete, non-solicitation, trade secret, and contract disputes. With regard to general corporate matters, he prepares employment agreements, operating and shareholder agreements, restrictive covenant (non-compete, non-solicitation, confidentiality) agreements, and business contracts.

Scott also brings his expertise as a Florida Supreme Court Certified Circuit Civil Mediator to facilitate a resolution as an alternative to lengthy and expensive litigation. As a member of the Executive Council of the Florida Bar’s Labor and Employment Section, Scott is extremely active in helping formulate and implement legal policy on both the state and local level. He is admitted to practice in all state and federal courts in Florida and Georgia, including U.S. District Courts for the Southern and Middle Districts of Florida.

Scott has been recognized as a Florida Super Lawyer in labor and employment law. Previously, he was recognized by Atlanta Super Lawyers as a Rising Star in labor and employment law. While attending law school, Scott was elected Editor-in-Chief of the Florida Journal of International Law and was awarded the President’s Award for outstanding service to the University. He now serves on the College of Law’s Alumni Council.

Scott has two children, Caroline and Laura. They both attended Fort Myers High School’s IB program, and Caroline is now attending Scott’s alma mater, Dartmouth. Scott is married to Kristalyn Loson Atwood, who is also an attorney. When not working, Scott enjoys spending time with his family, traveling, and watching New England sports.

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  • Posted in:
    Intellectual Property
  • Blog:
    Southwest Florida Business and IP Blog
  • Organization:
    Henderson, Franklin, Starnes & Holt, P.A.
  • Article: View Original Source

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