Category Archives: Employment Law

DOL Says FFCRA Is Effective April 1st!

On March 18th the President signed the Families First Coronavirus Response Act ( FFCRA) which provides for expanded FMLA and Emergency Paid Leave in certain limited circumstances related to the Coronavirus pandemic.  You can read my recent blog posts on the FFCRA for more detail.  Yesterday the DOL issued some guidance, which provided some clarity on a few issues, including the effective date of the FFCRA.

The DOL states that the FFCRA will be effective April 1st, which is one day earlier than everyone expected.  This is not a case of the DOL changing the rules, since the FFCRA states that it will be effective “no later than 15 days from passage”.  Still, you have one less day to prepare.

The  DOL also clarified the following issues:

  • Overtime must be included when calculating pay due to employees under the FFCRA
  • Paid Sick Leave is capped at 80 hours
  • Paid Sick leave and Expanded FMLA run concurrently

And, the DOL had this to say about the potential small business exemption from the FFCRA that I have had so many questions about:

If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?

To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.

You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.

So, more details are forthcoming about the potential exemption, but apparently submitting information to the DOL in order to “apply” for the exemption will not be necessary.

The DOL is supposed to issue FFCRA regulations in April.  Until then, you can get additional details from the DOL by accessing this link

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Knox County Essential Businesses Under Safer At Home Order

On Monday March 23rd Knox County Mayor Glenn Jacobs issued a ” Safer At Home ” Order. The Order takes effect at 12:01 a.m. on March 24th ( midnight tonight).  Under the Order the following are deemed Essential Businesses which can continue to operate with certain restrictions in place:


This Order does not apply to the following sectors and businesses and their employees as essential services to protect the health and well-being of all individuals residing or working in Knox County.

  • Federal and state offices and services, and private companies or individuals performing under federal, state, or local government contracts;
  • Essential government functions including, but not limited to, law enforcement, public transportation, and businesses that provide government programs and services, including functions assisting economically disadvantaged populations and individuals experiencing homelessness;
  • Companies providing media, communication and telecommunication services;
  • Grocery and beverage stores, farmers markets, food banks, caterers, convenience stores selling food, agriculture, food manufacturing and processing, feed mills, and other businesses that directly support the food supply, including but not limited to farming, livestock, and food cultivation;
  • Health care, mental and behavioral health, biomedical research, laboratory services, and other businesses that directly support the healthcare industry including, but not limited to, health information technology, staffing and supplies;
  • Sanitation and waste removal;
  • Energy, water, and sewage businesses and services;
  • Pharmacies, medical supply, and other businesses that directly support the drug and medical supply pipeline;
  • Vehicle fuel, support, and service stations, vehicle parts and repair businesses, and vehicle sales, leasing and rental businesses;
  • Banks, savings and loans, insurance companies, accounting businesses, and other business that directly support the insurance and financial services sectors;
  • Real property marketing, leasing, purchase, and sale services;
  • Legal and judicial services;
  • Laundromats, laundry, and cleaning services;
  • Home and business structure and equipment repair, hardware, building supply, and appliance sale and repairs;
  • Warehousing and storage facilities;
  • Construction, architectural, engineering, or surveying services;
  • Product logistics, transport, and distribution businesses;
  • Parcel transportation and delivery businesses;
  • Veterinary and pet supply business and services;
  • Home and business cleaning and maintenance services;
  • Educational institutions, public and private K-12 schools, private colleges and universities, trade schools, post-secondary, and technical colleges, but only as needed to facilitate online or distance learning and essential functions;
  • Landscaping and nurseries;
  • Production, distribution, and sale of household consumer goods such as cleaning and personal care products;
  • Essential building maintenance and security;
  • Individuals whose job functions require them to be at their work location and who are essential to preserving the information systems, accounting, and human resource infrastructures of any business which is otherwise in substantial compliance with this order;
  • Nonprofit entities providing support and assistance for the COVID-19 epidemic; and
  • Other businesses and services that may be determined are essential for the continued safety and security of Knox County.


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Today Knox County Mayor Glenn Jacobs issued a ‘Safer At Home” Order.  The Order takes effect at 12:01 a.m.  on Tuesday March 24th and will last for two weeks.  During that time only “essential businesses” may operate.  The County has promised that a list of essential services will be on its website Once I have the Order I will publish more details about what is an essential business and other details.  Stay tuned!

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Emergency FMLA and Paid Sick Leave- What Employers Need To Know

On March 18th President Trump signed the Families First Coronavirus Response Act.  This new law requires certain employers to provide emergency limited paid and unpaid leave under the FMLA and emergency paid sick leave in certain limited circumstances.   Some of the highlights are discussed below.

Beginning and End Date: Both the expanded FMLA and the emergency paid sick leave provisions  take effect on April 2, 2020 and expire on December 31, 2020.

What Employers Are Covered?  Both provisions apply to all employers with fewer than 500 employees, including public agencies.  Both allow employers of an employee who is a healthcare provider or an emergency responder to elect to exclude the employee from these two provisions. Both also allow subsequent Department of Labor regulations to exempt small businesses with fewer than 50 employees if applying these provisions would jeopardize the viability of the business.

Who Is Eligible?  Under the FMLA provision both full and part-time employees who have been on the employer’s payroll for 30 days are eligible.  But the paid sick leave provision applies to all employees, regardless of length of service.

What reason qualifies for the FMLA expansion? This is limited to an employee who cannot work or telework due to the need to care for the employee’s minor son or daughter if the minor child’s school or place of childcare has been closed, or the childcare provider is unavailable due to a “public health emergency” with respect to COVID-19 declared by a federal, state or local authority. Basically, it is “caregiver leave”.

Is any of this expanded FMLA leave paid?  Yes.  The first 10 days (two weeks) are unpaid, but an employee can substitute accrued paid leave, including the new emergency paid sick leave. The remaining leave ( a maximum of 10 weeks,  as the total available is still 12 weeks) is paid at 2/3 of the employee’s regular rate, for the number of hours the employee would be otherwise scheduled to work.  This pay is capped at $200 a day and $10,000 total.

Is expanded FMLA leave job protected? Yes, the employee must be restored to the same or equivalent position.  However, there is an exception for employers with less than 25 employees, if the employee’s position no longer exists due to operational changes related to the public health emergency, such as a reduction in force or restructuring because of a downturn in business.

What qualifies for emergency paid sick leave? The inability to work or telework due to any of the following:

  1. The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health-care provider to self-quarantine because of COVID-19;
  3. The employee is experiencing symptoms of (you guessed it) COVID-19 and is seeking a medical diagnosis;
  4. The employee is caring for an individual ( note, NOT a family member) subject to a quarantine or isolation order, or advised to quarantine or isolation;
  5. The employee is caring for a son or daughter whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 precautions;or
  6. The employee is experiencing any other substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor ( a catch-all!)

How much emergency paid sick leave is required? 80 hours maximum, but available immediately, so no accrual requirement.   Paid at the regular rate of pay for reasons 1-3 above (employee is sick), with a maximum of $511 a day and $5,110 in total.  For reasons 4-6 above (caregiver reasons) it is paid at 2/3 the regular rate of pay, with a maximum of $200 a day and $2,000 in total.

Can I require  employees to use paid leave under an existing policy before using this new emergency paid leave? No. The emergency paid leave is supplemental.

Does the unused emergency sick leave carryover ? No, the unused leave does not carryover to the next year.  It also does not have to be paid upon termination under this law, but your state law might require it to be paid, so check that before you make a final decision.  Under current Tennessee law, so long as you state in the policy that it will not be paid upon termination you do not have to pay it.

Do I get a tax break? Potentially under both the expanded FMLA and the emergency sick leave provisions.   Talk with one of the lawyers at my firm who does tax law, or your accountant.

Of course, you cannot retaliate against an employee for exercising his or her rights under these new laws. You will also have to post a Notice detailing these laws, and the Department of Labor is  in the process of drafting that Notice.

There are a lot of issues and open questions with these sweeping changes.  If we can help you to further navigate these uncharted waters please give us a call.


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Coronavirus Concerns For Employers

Coronavirus concerns are international.  Universities are cancelling in-person classes.  Professional and collegiate sporting events are being cancelled.  Travel bans are in place.  In New York state, the National Guard was deployed in an effort to create a “containment zone” in New Rochelle.  But what can employers do when faced with issues created by the Coronavirus?

The EEOC weighed in on this issue last week, and provided some helpful guidance on how employers can manage Coronavirus concerns and still comply with the ADA.   I have summarized the EEOC’s answers to 3 key questions below.

In an effort to protect their workforce, how much information may an employer request from an employee who calls in sick?

The EEOC stated that ADA-covered employers may ask the employees if they are experiencing flu-like symptoms, such as fever or chills and a cough or sore throat.  This information must be maintained by the employer in a  confidential medical record in compliance with the ADA.  Furthermore, the EEOC stated that these inquiries are not disability related if Coronavirus is like the seasonal flu.  And, if the Coronavirus becomes more severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of Coronavirus poses a direct threat to the health and safety of other employees. 

Does the ADA allow employers to require employees to stay home if they have Coronavirus symptoms?

Yes.  Employees who become ill at work with flu-like symptoms should leave work and advising them to do so is not a disability-related action.  And, sending them home would be permitted if the illness were more severe, as the individual would pose a direct threat to the health and safety of others. 

While not addressed by the EEOC, sending an employee who has a severe case of Coronavirus home may be required under OSHA’s “General Duty Clause”, which requires employers to furnish a “place of employment … free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.”

The EEOC also confirmed that the  ADA allows employers to require a doctor’s note certifying the employee’s fitness for duty when returning to work.  Again, this is not a disability-related inquiry, and if the illness is severe, the inquiry would still be justified to avoid a direct threat.

The EEOC’s Guidance does not address whether an employee who is sent home must be paid, because that is not one of the laws the EEOC enforces. That answer depends on whether any work is performed and whether the employee is non-exempt or exempt under the FLSA.

Hourly employees are only paid for hours worked, so if an employee will be working from home he or she must be paid for the actual time worked.  If the hourly employee will not be working from home, he or she gets no pay while out of work.  An employer can allow the employee to use accrued PTO or sick leave. Salaried, exempt employees must be paid their normal weekly salary if the employee performs any work that week.

The Coronavirus is definitely cause for concern.  Employers who act responsibly and in accordance with the EEOC and other guidance, don’t have to add employment law concerns to the list.



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NLRB Delivers Some Holiday Gifts To Employers

It may or may not be due to “being in the Holiday Spirit” but last week the NLRB issued two ruling which are nice gifts to employers.


First, in Apogee Retail, the NLRB approved greater confidentiality in workplace investigations.  In doing so the NLRB determined that “investigative confidentiality rules limited to the duration of the investigation are generally lawful”.  This means that employers can insist that persons interviewed during a workplace investigation not discuss the substance of the investigation with others and not run afoul of the NLRA by making this request.   In reaching this decision the Board rejected the rationale of the 2015 decision Banner Estrella Medical Center, holding that the Banner Estrella decision ‘improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed employee Section 7 rights”.


Second, the Board reversed Purple Communications, Inc. and held that an employer has the right to restrict employee use of its email system to business purposes.  Thus, so long as employers are not allowing some non-business use and not others, employers can successfully prevent usage of their email systems for the purpose of organizing a union.  The decision, known as Caesars Entertainment Corp.,  adds an exception letting workers use company email for union organizing when it’s “the only reasonable means for employees to communicate with one another”.


Happy Holidays!



Avoid A Halloween Nightmare- Investigate That Complaint!

Today is Halloween.  Celebrate if you choose, but don’t let today, or another day, turn into a nightmare at work by failing to investigate a complaint of harassment, discrimination, or other alleged misconduct.

Follow these steps when you receive a complaint at work:

  1. Investigate everything.  No matter how minor or major the complaint may seem, investigate it.
  2. Investigate promptly.  Same day is ideal. If that is not possible, begin the investigation as soon thereafter as possible.
  3. Investigate thoroughly. Leave no stone unturned.  Interview all witnesses.  Review all documents (emails and text messages are often where key information will be found), photographs, videos and any other tangible items.
  4. Use the who, what, when , why, how method of questioning to obtain the information you need. Start broadly and then focus on the specific.
  5. Make sure the investigator is unbiased and knowledgeable about the process.  HR or Risk Management/Compliance are typically an excellent choice to handle the investigation.  If that is not an option consider retaining outside counsel to do so.
  6. After the investigation is complete share the conclusions/findings  with the complainant and take appropriate corrective action promptly.

If you follow these steps you can avoid turning a work complaint into a nightmare, on Halloween or any other day.

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U.S. Department of Labor Issues Final Overtime Rule

In March 2019, the U.S. Department of Labor (“DOL”) announced a Notice of Proposed Rulemaking that, if passed, would increase the minimum salary thresholds to qualify for the Executive, Administrative, and Professional Exemptions, often referred to as the “white collar exemptions.”  Following public comments and listening sessions on the proposal, the DOL has issued a Final Overtime Rule.  Although announced on September 24, 2019, the Final Overtime Rule will not take effect until January 1, 2020.

The Final Overtime Rule updates the standard salary thresholds necessary to exempt Executive, Administrative, or Professional employees from the minimum wage and overtime requirements set forth in the Fair Labor Standards Act (“FLSA”) by:

  • raising the “standard salary level” from the currently enforced level of $455 per week to $684 per week (which is equivalent to an annual salary of $35,568 for a full-time worker);
  • raising the total annual compensation level for “highly compensated employees (“HCE”)” from the currently-enforced level of $100,000 to $107,432 per year; and
  • allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to ten percent (10%) of the standard salary level, in recognition of evolving pay practices.

The DOL stated that these changes are intended to account for and reflect growth in employee earnings, since the currently enforced standard salary thresholds were set in 2004.

Although the Final Overtime Rule does not take effect until January 1, 2020, employers should begin planning now for the change.  Employers should analyze whether increasing a certain employee’s salary is feasible in order to maintain the applicable exemption, or if their business is better served by reclassifying the employee as non-exempt and paying the employee overtime when required.  If you have any questions about the Final Overtime Rule and how it will affect your business, give us a call.

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On May 10, 2019 Governor Bill Lee signed legislation amending the definition of employee in several Tennessee employment laws.  Now consideration of the IRS 20 Factor Test must be made to determine whether a worker is an employee or independent contractor under certain laws.

The amended laws are as follows:

  • Code Ann. § 50-2-111 (wage regulations – leased operator or owner operator of motor vehicle, or common carrier contract).
  • Code Ann. § 50-3-103 (Tennessee Occupational Safety and Health Act).
  • Code Ann. § 50-7-207 and 207(e) (Tennessee Employment Security Law – Unemployment Insurance).
  • Code Ann. § 50-9-103 (Drug-Free Workplace Program).

With this amendment “employee” is now re-defined as an individual who performs services under a covered employer for wages if the services performed by the individual qualify as an employer/employee relationship under the IRS 20 Factor Test, which is set forth in IRS Revenue Ruling 87-41.

The law is effective January 1, 2020.

In light of this change employers should examine their relationships with independent contractors now to determine whether the individual is properly classified as an independent contractor under the amended laws.  Making this analysis and taking any necessary corrective action now could save thousands of dollars in the future, in the event a government agency determines that someone who is classified as an independent contractor is really an employee.

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Stop It Bully! Tennessee Expands Anti-Bullying Law To Private Employers

In 2014 Tennessee passed the Healthy Workplace Act (HWA).  Also known as the Anti-Bullying Law,  when originally passed the HWA applied only to public employers.

The HWA prohibits “Abusive Conduct” which is defined as follows:

“acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment such as: (A) repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets; (B) verbal, nonverbal, or physical conduct of a threatening , intimidating, or humiliating nature in the workplace;or (C) the sabotage or undermining of an employee’s work performance in the workplace.” TCA 50-1-502

Unlike harassment or discrimination laws,  the HWA prohibits “Abusive Conduct” even though the conduct is not based on a protected class or activity.

On April 23, 2019 Governor Lee signed a bill expanding the HWA to private employers.  The expansion took effect that day.  So what should private employers do in light of this significant development?

First, adopt a policy in accordance with the HWA.  The HWA provides that if an employer adopts the model policy created by TACIR, or adopts a policy that : 1. Assists employers in recognizing and responding to Abusive Conduct in the workplace; and 2. Prevents retaliation against any employee who has reported Abusive Conduct in the workplace the employer is immune from suit for any employee’s conduct that results in negligent or intentional infliction of mental anguish.  The immunity does not extend to any employee who engages in Abusive Conduct.

The TACIR model policy can be found on pages 13-17 of this link .

Will an existing anti- harassment policy comply with the HWA? If the policy only prohibits harassment based on a protected class, as most all do, it will not.

Employers should not delay in adopting a policy that complies with the HWA to take advantage of the immunity that the Act offers.  The failure to do so could prove to be costly in the future.






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