News & Insights

Daily DigestMarch 30, 2020by Stanton LawDaily Digest 3/30/2020

Navigating the FLSA Tip Credit: Who and What Qualifies, Valid Tip Pools, and Other Things You Need to Know

Good morning –

Here’s hoping this week brings brighter news. It’s already started with some welcomed clarity on the employment-law front. We’ll keep the timely information coming but may switch to an every-other-day format as things start to (fingers crossed) shake out a bit.

• Over the weekend, the U.S. Department of Labor (DOL) released both additional and updated Q&A’s on the Families First Coronavirus Response Act (FFCRA) to start answering some of employers’ biggest concerns with regards to paid leave and furloughed employees. The Q&A is here.

o As Stanton Law predicted last week, the DOL’s guidance confirms that if employers send workers home because there is a lack of business and not enough work for the employee to do, the employer does not have to pay the employee sick leave under the Emergency Paid Sick Leave Act (EPSLA) or Emergency Family and Medical Leave Act (EFMLA). This also applies to business shutdowns due to a federal, state, or local order. Further, the DOL indicates that if an employee is already on paid leave under EPSLA or EFMLA and the business closes down or reduces its hours, the employer does not need to provide any more paid leave when the work dries up. The DOL correctly points employees to instead use unemployment insurance benefits.

o The DOL also addresses the important question about EPSLA and EFMLA with regards to intermittent leave. This question usually comes from an employee who is working from home but who cannot work a full normal work schedule due to caring for a child whose school shut down. Can the employee take a couple hours off here and there to take care of the child and use EPLSA or EMFLA to cover those hours off? The DOL answers this question affirmatively: The employee can generally use the leave in any increment; however, the DOL wants employees and employers to come to an agreement on how the flexible work schedule would look. The alternative is the employee just goes completely on EPSLA or EFMLA and receives compensation for the hours they would have worked otherwise.

o There are, however, important exceptions to intermittent use. For instance, an employee who had qualified for EPSL because they are symptomatic for coronavirus would not be eligible to come in for partial or alternating days…the paid leave is intended to keep them out. So, makes sense, right?

o All and all, the DOL’s Q&A reflects pretty commonsense direction. It encourages clear communication and cooperation, asks for give-and-take from employers and employees, and seems to recognize the boundaries of what can be strictly mandated in this undeniably surreal environment.

• Stanton Law’s FFCRA Compliance Package is now ready. It includes EPSLA and EFMLA policies, leave request forms, and talking points to help promulgate and explain your new FFCRA policies and everyone’s new rights and obligations. Please email [email protected] for details on how to secure your package and implementation assistance.

• On March 27, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Below are some of the highlights the CARES Act provides to you or your employees.

o The CARES Act greatly expands unemployment benefits by providing $600 per week for up to four months in addition to state unemployment benefits. The CARES Act also expands unemployment benefits to cover independent contractors and self-employed workers. Employers who are sitting on the fence about closing their doors and waiting out this crisis can do so and know their employees will receive unemployment benefits beyond those expected from the state.

o The CARES Act also provides businesses with conditional with loans that may be up to 100% forgivable. Congress attached several not-insignificant strings to these emergency loans and the forgiveness provisions, including tying to the amount of forgiveness to maintaining payroll and headcount levels. While many of the loan details are outside Stanton Law’s wheelhouse and you should talk to your accountant or banker regarding this loan, we are here to help point you in the right direction.

o Seeing the CARES Act from a high level, it appears to give employers an attractive, potentially expense-neutral alternative to furloughs and layoffs. Each situation is different, though, and we encourage you to talk through the various scenarios and options with your trusted advisors – we’d be pleased to be part of that team. Arrange for a call with one of our attorneys by emailing [email protected].

In response to this crisis, Stanton Law now offers to potential new clients interim, short-term engagements to answer your legal questions. We’re happy to arrange for a ½-hour phone/video consultation with an attorney. We may be able to come up with a plan during that conversation and exchange, and it may be all the direction you need, at least for the short term. But when you need us to take on additional work, we’ll put in place a formal engagement letter and assign the work to the particular attorney who will be handling the specifics.

To set up our conversation, please call 404.881.1288, ext. 0 to speak with our administrator. She’s really cool, but please recognize that she obviously can’t provide legal advice.

If you’re more of a do-it-yourself fan:

• Review the Firm Policies & Procedures. By setting up an appointment, you’re agreeing to what we’ve set forth.

• Schedule a convenient time to talk by clicking this link: There are 1/2-hour appointments available around the clock – please schedule what works for you.

• We’ll send you a calendar invite to lock-in our appointment.

• Send over any materials at which you’d like us to look and we’ll be ready to discuss your several courses of action.

In addition to receiving one-on-one advice specific to your business by scheduling a consultation, you can take advantage of helpful general information discussions by accessing one of our recent webinars: Helping Employers and Employees Understand New Rights and Obligations Related to Coronavirus and What Employers Need to Consider with Coronavirus.

At Stanton Law, we are glad to be one of your resources for daily updates on COVID-19’s effect on your business. If you have any questions regarding this or any other legal matter, please do not hesitate to contact our experienced Atlanta employment attorneys at 404-531-2341 or online.