News & Insights

Daily DigestApril 3, 2020by Stanton LawDaily Digest 4/3/2020

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

Today’s Daily Digest will start with some good news (at least to us). Yesterday seemed to be the first day in three weeks at Stanton Law that we were finally able to take a breather. Our phones were not ringing off the hooks and emails were not coming in a mile a minute regarding the Families First Coronavirus Response Act (FFCRA) or COVID-19-related matters. Refreshing to be just a little less busy. We are hoping this is a good sign and that things are starting to settle in. With that being said, next week we are scaling back our output of the daily digest to every other day (I am sure your inbox will be grateful).

• The FFCRA is in effect, and you must implement Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLA) policies now. The U.S. Department of Labor (DOL) has given employers a 30-day grace period to comply with FFCRA, but don’t wait to get started. Stanton Law’s FFCRA Compliance Package is ready and includes EPSLA and EFMLA policies, leave request forms, and talking points to help promulgate and explain your new FFCRA policies. We will continue to keep you current as agencies further flesh out FFCRA, and update the FFCRA Compliance Package as needed. Please email [email protected] for details on fees and methods for securing your package and implementation assistance.

• As the potential length of this crisis comes into focus and employers’ options become clearer, we’re starting to get more questions about “reductions in force.” Understanding that no one wants to fire folks, much less multiple folks at once, reality compels the conclusion that many people are going to, even if temporarily, lose their jobs. If you’re considering a RIF, several things to keep in mind:

o Your employees won’t necessarily be without income – unemployment benefits will almost certainly be available. Offering a modest severance is also an option, and benefits continuation is likely available. In other words, you’re not simply throwing folks into the street.

o You can always rehire when things pick up.

o RIFs, though, differ from typical one-off separations and take some planning.

o Especially if you’re not completely shuttering your operations or whole departments, and instead reducing headcount, it will be important to set your decision-making criteria first (i.e., what you need from the folks who stay), then apply that to your folks (i.e., who will stay and who will go).

o Setting the criteria first, then making the cuts and keeps, will lead to better business decisions and make the separations less vulnerable to allegations of discrimination.

o If you’re going to offer severance and obtain releases of claims from employees being separated, the law may require specific language in your release agreements. Don’t use your standard severance and release of claims template.

o Employers must be mindful of their Worker Adjustment and Retraining Notification (WARN) Act reporting obligations, as well as similar notification requirements under various states’ laws.

o We think you need counsel for this process, obviously. We encourage you to talk it through with your employment lawyer sooner rather than later. There may be alternatives to terminations, but if you go with a RIF, it may take the better part of a week to get stuff in order to do it properly. As with anything, mistakes are made in a hurry, so give yourself some time to get it right.

o Perhaps morbidly, Stanton Law has set up a RIF team to quickly respond to your questions and, if a RIF is the path you need to go, get a plan in place to help it run as smoothly as it can. We’d like to help make this suck less.

• Today’s Q&A of the day is Question 45 in the DOL guidance. It asks, “May I take leave under the Family and Medical Leave Act over the next 12 months if I used some or all of my expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act?”

o An employee may take up to 12 workweeks of leave during a 12-month period under the Family and Medical Leave Act (FMLA Classic). This includes the Emergency Family Medical Leave Expansion Act (EFMLA) because EFMLA folds into the pre-existing FMLA Classic. If an employee takes a few workweeks of EFMLA leave by the end of the year, they may take the remaining workweeks for a serious medical condition under FMLA Classic, as long as the total leave time does not exceed 12 workweeks in a 12-month period.

o For example, if an employee takes four weeks of EFMLA leave, these four weeks count towards the employee’s 12-weeks of leave under FMLA Classic. If that same employee needs to take leave for a serious medical condition, like surgery, in November 2020, then that employee is entitled to up to eight weeks of FMLA Classic leave.

o With regards to Emergency Paid Sick Leave (EPSLA), an employee is entitled to paid sick leave no matter how much leave has been taken under EFMLA or FMLA. However, EPSLA can run concurrently with the first two weeks of EFMLA, which would count towards the 12 workweeks in a 12-month period.

o Keep in mind, EFMLA leave is paid leave, but FMLA Classic is unpaid leave. Also, to be a covered employer under FMLA Classic, you need to have 50 or more employees, which is different from the 499 or fewer employees for EFMLA. You can be a covered employee under EFMLA but not under FMLA Classic and vice versa.

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.