News & Insights

Daily DigestApril 1, 2020by Stanton LawDaily Digest 4/1/2020

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

As we announced yesterday, Todd Stanton will join bankers and other subject matter experts at a virtual roundtable today, April 1 at 2PM to share their insights on the impact that the Payroll Protection Program (PPP) provision of the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) will have on commerce. To participate in this real-time discussion on the ways the COVID-19 outbreak may affect your business, register here!

• Today is the day. The Families First Coronavirus Response Act (FFCRA) is active and you must implement Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Act (EFMLA) policies. Stanton Law’s FFCRA Compliance Package is now ready and includes EPSLA and EFMLA policies (for companies with 1-49 and more than 50 employees), 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 fees and methods to secure your package and implementation assistance.

• We have heard nonstop about FFCRA for the last two weeks, but the economic stimulus plans are just getting started. The CARES Act was passed and signed into law last Friday, March 27. The Paycheck Protection Program (PPP) provision of the CARES Act supplies $350 billion in small business loans to help small businesses pay their workers. The U.S. Chamber of Commerce’s Small Business Guide and Checklist is one of the clearest explanations of the program.

o If you have any questions regarding the PPP, please contact (and be patient with) your banker. Employment lawyers are starting to be able to breathe again while bankers and CPAs are mounting up for a grueling few weeks. Do not be afraid to contact your banker or CPA, since the CARES Act is not a walk in the park but it could be very helpful for your business.

• Today, we will be touching on a different set of questions from the U.S. Department of Labor’s (DOL’s) updated FFCRA Q&A. Questions 20, 21, and 22 answer the question: “Can employees use EPSLA and EFMLA leave intermittently?”

o The answer to this question simply is yes, with some caveats. The DOL breaks it into two categories: intermittent leave while teleworking or while working at the usual worksite.

o For teleworking, employers and employees may agree to an intermittent schedule if the employee is unable to telework during their normal schedule due to a qualifying reason. The example the DOL uses involves an employee who needs to take care of their child because of COVID-19-related school closures. If an employee agrees to 90-minute increments, they can work from 9AM to 10:30AM, take leave from 10:30AM to 12PM, and then return to teleworking.

o You might have caught the “may” in the bullet above. DOL encourages employers and employees to collaborate on arriving at a flexible agreement that meets both parties’ needs. This is a tough and tricky time for everyone, and we need to be willing to give a little and get through this in one piece.

o Arranging intermittent EPSL in the physical workplace is a bit more complex but makes sense. The only qualifying reason for EPSLA leave that can be taken intermittently is if an employee is taking care of their child because of COVID-19-related school closures. So, an employer and employee can agree the employee works Monday and Tuesday, and takes intermittent leave for the rest of the week to take care of their child. The reason the other qualifying reasons cannot be used intermittently is because in those cases, the employee needs to be quarantined or is caring for someone that needs to be quarantined. This limitation prevents people who may be sick with COVID-19 or caring for someone that possibly has COVID-19 from spreading the virus. Makes sense, huh?

o Intermittent leave under EFMLA is allowed, but the employer must grant permission and both the employer and employee need to agree on a schedule. Again, this schedule can be Monday, Wednesday, and Friday at work, and Tuesday and Thursday at home taking care of the kids.

• Lastly, do not forget that employment laws are not taking a break like the rest of the world. Employers still need to pay non-exempt employees overtime, and equal opportunity obligations still prevent harassment and discrimination. Don’t sleep on the usual employment law obligations to make a bad situation worse.

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.