DC Mayor Signs Act Creating Near Total Ban on Non-Compete Agreements for DC Employees

By Guy Brenner and Caroline Guensberg on January 13, 2021 Posted in Non-Competes and Protection of Corporate Assets

On January 11, 2020, Muriel Bowser signed the Ban on Non-Compete Agreements Amendment Act of 2020 (the “Act”) into law, moving the District one step closer to implementing one of the broadest, if not the broadest bans on non-competition agreements in the country. As we previously reported, in December 2020, the DC Council passed the Act, which broadly prohibits non-competes in the District subject to certain very narrow exceptions. Indeed, the Act, the specifics of which are detailed here, prohibits employers from barring employees from working for competitors not only after their employment ends, but also during their employment.

Despite the Mayor’s approval, the Act is not yet in effect. The Act will not go into effect until the expiration of the 30-day Congressional review period pursuant to the Home Rule Act – which will not begin until it is transmitted to Congress – and its publication in the District of Columbia Register. Even so, it is expected Congress will not interfere with the Act and it will become law in the coming months.

Check back here for updates regarding this new significant development for employers with employees in District of Columbia.

DOL Issues Opinion Letters on Administrative Exemption and Ministerial Exception

By Allan Bloom on January 11, 2021 Posted in FLSA, Wage and Hour

The U.S. Department of Labor’s Wage and Hour Division (WHD) issued two new opinion letters on January 8, 2021, bringing the number of “lame duck” wage and hour opinion letters—issued since Election Day 2020—to six.

In FLSA2021-1, WHD determined that account managers at a life sciences manufacturer qualify for the FLSA’s administrative exemption. The account managers learn about the needs of potential clients, researching what company products would meet those needs, and communicating about how the company’s products could best fulfill those needs. The employees act with autonomy, are not closely supervised, and are expected to independently develop account plans and strategies and make independent decisions in answering client questions. They determine how best to engage with potential clients and to create product solutions, including based on the analysis of information gleaned from the sales process. On these facts, WHD concluded that the account managers met the duties requirements for the administrative exemption.

In FLSA2021-2, WHD concluded that a private religious preschool can pay its teachers on a salary basis that would otherwise not conform with the FLSA, provided the teachers qualify for the ministerial exception. The judicially-created exception (there is no mention of it in the FLSA)–based on the First Amendment’s separation of church and state–exempts from FLSA coverage employees of religious institutions whose primary duties are ministerial in nature. There is no rigid formula for determining who qualifies for the exception, but an employee need not be ordained or have a particular job title to qualify. To the contrary, employees qualify based on their role in conveying the organization’s message and carrying out its religious mission, a determination that must be made on a case-by-case basis. WHD notes that religious school teachers can qualify for the exception, and assuming that they do, the school may compensate them on a salary basis that would not otherwise comport with the FLSA.

Proskauer’s Wage and Hour Group is comprised of seasoned litigators who regularly advise the world’s leading companies to help them avoid, minimize, and manage exposure to wage and hour-related risk. Subscribe to our wage and hour blog to stay current on the latest developments.

Tags: department of labor, Federal, FLSA, overtime, wage and hour

President-Elect Biden Nominates Marty Walsh for Secretary of Labor

By Allan Bloom and Thomas B. Fiascone on January 8, 2021 Posted in Biden Administration Coverage

On January 7, 2021, President-elect Joe Biden announced Boston Mayor Marty Walsh as his nominee for Secretary of Labor. If confirmed, Mayor Walsh would represent a stark contrast to incumbent Labor Secretary, longtime management attorney Eugene Scalia. Walsh served as the president of Laborers’ Union Local 223 prior to being elected Mayor. AFL-CIO President Richard Trumka publicly endorsed Walsh for the position of Labor Secretary and praised the selection, underscoring Walsh’s background in organized labor.

As Secretary of Labor, Walsh will presumably be tasked with helping to implement a number of Biden administration policy changes, including with respect to wages, pay equity, paid leave, and workplace safety. Among his first duties will be aiding the federal government’s continued response to the COVID-19 pandemic.

A look into Walsh’s tenure as Mayor of Boston may provide some insight into what employers can expect from him as Labor Secretary.

1. Boston’s COVID-19 Response

Boston, one of many cities hit hard by COVID-19, has consistently been more conservative than Massachusetts as a whole in its reopening plans. Over the course of the pandemic, Boston has typically been slower to increase office capacity limits and to permit reopening of certain businesses like fitness centers and dining establishments. Boston has also introduced free, asymptotic COVID-19 testing in its efforts to contain the spread of the virus.

2. Ties to Organized Labor

Walsh’s background in union leadership is certain to influence his priorities as Labor Secretary. Following President-elect Biden’s announcement, Walsh tweeted, “Working people, labor unions, and those fighting every day for their shot at the middle class are the backbone of our economy and of this country. As Secretary of Labor, I’ll work just as hard for you as you do for your families and livelihoods.”

3. $15 Minimum Wage and Paid Family and Medical Leave

Massachusetts recently began offering paid family and medical leave benefits, and is on its way to mandating a $15 minimum wage (which it will do on January 1, 2023, with gradual increases each year until then). Mayor Walsh was a strong supporter of both efforts.

We expect a flurry of activity from the Biden administration’s Labor Department in the months to come. Subscribe to Proskauer’s Law and the Workplace and Labor Relations Update blogs to stay current on the latest developments impacting your business.

Significant Workplace Changes in Store Under the Biden Administration

By Allan Bloom, Tony Oncidi, Steven Porzio, Dominique Kilmartin, Elizabeth Dailey, Tony S. Martinez and Joshua Fox on January 8, 2021 Posted in Biden Administration Coverage

From pay equity to an increased minimum wage, pro-worker and pro-union labor policies, and additional anti-discrimination protections, President-elect Biden has touted support for numerous legislative and regulatory proposals that would significantly change the employment and labor law landscape. Bolstered by Democrat victories in the Georgia Senate runoff elections (and the resulting unified Congress, the first in nine years), employers can expect new and amended workplace laws and rules in 2021. We highlight below several of the initiatives the Biden administration is likely to prioritize.

Equal Employment and Paid Leave

More stringent federal equal pay laws. President-elect Biden has publicly committed to supporting measures aimed at further tackling pay disparity. Indeed, Biden has pledged to sign the Paycheck Fairness Act during his term. Under current law, an employer may, for example, pay a male employee more than a female employee where the reason for the disparity is based on a “factor other than sex.” The Paycheck Fairness Act would eliminate this flexibility, limiting such disparities to bona fide factors objective such as education, training, or experience. The act would also prohibit employers from restricting employees from discussing wage information and require companies to report to the EEOC compensation data correlated to employees’ race, sex, and national origin. If signed, the bill would make it easier for employees to pursue individual and collective/class actions against their employers, alleging wage discrimination on the basis of race, sex and national origin.

Broader anti-discrimination laws. In its June 2020 decision in Bostock v. Clayton County, Georgia, the Supreme Court held that Title VII’s prohibition against sex discrimination encompasses and thereby outlaws discrimination on the basis of sexual orientation and gender identity. Notwithstanding that precedent, President-elect Biden has repeatedly stated that he hopes to sign the Equality Act within his first 100 days in office. The Equality Act, which previously passed the House of Representatives, would prohibit discrimination with respect to employment, housing, education, and public accommodation on the basis of sexual orientation and gender identity. Additionally, Biden has expressed support for expanding protections for pregnant, senior, and disabled employees.

Federal paid family leave. President-elect Biden has expressed support for providing employees up to 12 weeks of paid family and medical leave. Biden’s camp has indicated that his proposal for paid leave would include provisions similar to those in the Family and Medical Insurance Leave Act (the FAMILY Act), which has previously been introduced in Congress.

Elimination of the “but-for” causation requirement under the ADEA. President-elect Biden has indicated that he intends to protect older Americans against discrimination in the workplace by, among other things, making it easier for such workers to prove that they were victims of age discrimination. Since the Supreme Court’s 2009 decision in Gross v. FML Fin. Servs., Inc., plaintiffs alleging discrimination under the federal Age Discrimination in Employment Act have been required to prove that age was the “but-for” cause of the harm they suffered, as opposed to merely a “motivating factor.” By contrast, other anti-discrimination laws, such as Title VII, allow a “mixed motive” theory of liability, under which a plaintiff can prevail even if the characteristics protected by the statute are not the only reasons for the employer’s action.

Employment-Related Agreements

Elimination of mandatory pre-dispute arbitration. Having regained control of the Senate, Congressional Democrats are expected to pass the Forced Arbitration Injustice Repeal Act, and Biden has indicated his support. The act, which has already passed the House, would invalidate pre-dispute arbitration agreements in the employment, civil rights, consumer, and antitrust contexts, and would require employers to litigate workplace disputes in court.

Elimination of class-action waivers. In its 2018 decision in Epic Systems v. Lewis, the Supreme Court expressly upheld class and collective action waivers in the employment context. Employers utilizing such waivers can currently mandate the resolution of employment-related claims on an individual basis in an arbitration proceeding, thereby minimizing their exposure to potential class-wide liability. Notwithstanding Epic Systems, President-elect Biden has stated that he would sign legislation prohibiting employers from seeking such waivers.

Increased restrictions on non-compete agreements. President-elect Biden has proposed placing limits on non-compete and no-poaching agreements. More specifically, Biden has stated that he will work with Congress to prohibit non-compete agreements with the exception of those “that are absolutely necessary to protect a narrowly defined category of trade secrets” and to eliminate no-poaching agreements altogether.

Wage and Hour

Minimum wage hikes. The federal minimum wage is currently less than half the highest state minimum wage (for example, it’s $15 for large employers in New York City). Over the last few years, state and local governments nationwide have passed laws steadily increasing their minimum wage rates. President-elect Biden has followed their lead, repeatedly calling for raising the federal minimum wage to $15. Biden also supports eliminating the inclusion of tips as part of the minimum wage as well as the subminimum wage for individuals with disabilities. With the Senate now controlled by Democrats, the White House is likely to secure the Congressional support necessary to increase the minimum wage, likely on an incremental basis over the next several years.

Overtime rule changes. We expect the Biden Administration to ask the Department of Labor to implement benchmark-related increases to the minimum salary for overtime exemption, similar to what President Obama’s DOL tried to implement in 2016 (those changes were declared invalid by a Texas federal district court prior to implementation); such a change would result in more “white collar” employees being eligible for overtime pay. Under the 2016 rule, the minimum salary for such workers to be exempt from overtime would have doubled from $23,660 to $47,476 and would have further increased every three years. With support from Congressional Democrats, it’s likely the White House will seek to implement similar changes to the overtime laws through a combination of legislative and agency rulemaking processes.

Addition of “wage theft” provisions to the FLSA. President-elect Biden also is expected to push for measures that would add “wage theft” provisions to the Fair Labor Standards Act. Following the lead of a number of states, such amendments would enhance pay transparency and would require employers to provide detailed pay statements while expanding the penalties for willful instances of wage theft, record falsification, or retaliation.

Labor/Management Relations

Pro-worker/union legislation. President-elect Biden has promised to sign the Protecting the Right to Organize (PRO) Act, which passed the House in February 2020 but stalled in the Senate. The pro-worker legislation would provide for sweeping changes to the National Labor Relations Act, with the goal of enhancing the ability of unions to organize workers. Its key provisions are as follows:

imposing financial penalties against employers for interfering with workers’ organizing efforts;
compelling mediation in first contract negotiations where agreement is not reached within 90 days;
banning employers from holding mandatory meetings with their employees, including “captive audience” meetings;
reinstating the Obama administration’s controversial “persuader rule,” which required employers to report the activities of third-party consultants that work behind the scenes to manage employers’ campaigns in response to union organizing;
codifying into law the more expansive Browning-Ferris “joint employer” rule and the 2014 representation election rule with shorter union election timelines; and
permitting workers to engage in secondary boycotts and preventing employers from permanently replacing strikers.

Despite President-elect Biden’s support, it is unlikely the PRO Act will become law in its current form to the extent it is subject to a filibuster.

Unionization through card-check authorization. Biden has been an avid proponent of card-check authorization—which would bypass the NLRB’s election process and allow unions the right to secure recognition by collecting authorization forms from employees stating that they wish to be represented by the union. The PRO Act also includes a provision that would require employers to recognize a union based on a card-check authorization, but only if the NLRB determines that the employer improperly interfered with the election.

Increased legal and financial security for unions. President-elect Biden has stated that he would ban state “right to work” laws and allow unions to collect dues from all workers who benefit from union representation, regardless of union membership. While the PRO Act would aim to supersede “right to work” laws by allowing employers and unions to bargain for contract provisions that require all workers to pay a “fair share” of the costs of union representation, Biden has said that he would go even further and repeal the provisions of the Taft Hartley Act that allow states to enact “right to work” laws. Additionally, a Democrat-majority NLRB could reverse recent precedent holding that employers are not obligated to adhere to dues-check-off provisions following the expiration of a collective bargaining agreement.

A pro-labor Board. The NLRB is comprised of five members, all of whom are appointed by the President for five-year terms, with the approval of the Senate. With one seat currently vacant and another to be vacated by a Republican in August 2021, the White House will have the ability to secure a Democratic majority on the Board. In addition, upon taking office, President-elect Biden could succumb to the many calls within the Democratic party to terminate NLRB General Counsel Peter Robb before the expiration of his term in November 2021. No incoming president has ever terminated a General Counsel, however, and the legality of such an action is untested. The General Counsel exerts significant influence over the NLRB regions’ prosecutorial priorities and agenda.

Reversal of recent precedent-setting NLRB decisions. Under President Trump, the NLRB issued a number of significant decisions aimed at relieving some of the administrative burdens placed on employers by decisions issued by the Obama Board, including with respect to employee access to employer IT systems for organizing activity, employer handbook rules and workplace policies, and unilateral actions by employers concerning mandatory subjects of bargaining. As is the case whenever party affiliation in the White House changes, all of the labor policies implemented in the last four years are susceptible to change or reversal by a Democrat-majority NLRB.

Reversal of regulations enacted by the NLRB in the last few years. Under the Trump Administration, the NLRB adopted an ambitious rulemaking agenda—a departure from the Board’s historical practice of setting labor policy through the adjudication of actual cases. Over the last several years, the Board has adopted a more stringent “joint employer” rule, revised its election rules to provide for a more efficient and reasonable pre-election process, and proposed a final rule rejecting the “employee” status of graduate student teachers and research assistants at colleges and universities, among others. The forthcoming Democrat-majority Board could decide to revoke or reverse these rules through additional rulemaking.

Other Anticipated Actions

Freeze on midnight rules and regulations. As President Trump did when he took office in January 2017, we expect Biden will issue a memorandum on Inauguration Day to the heads of all executive departments and agencies temporarily halting all non-emergency rulemaking activities. Among other things, the memorandum is likely to direct the recipients to send no regulation to the Office of the Federal Register (OFR) for publication pending further review and approval; to withdraw all regulations sent to OFR but not yet published; and to postpone the effective date of any regulations already published but which have not yet taken effect.

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Some of the new laws and rule changes expected from the Biden administration won’t require a change in practice or strategy for employers in states and cities with existing employment laws considerably broader than their federal counterparts. But in many parts of the country, the landscape of workplace law may change dramatically over the next year.

Subscribe to Proskauer’s Law and the Workplace and Labor Relations Update blogs to stay current on the latest developments impacting your business.

Trump DOL Issues Two More “Lame Duck” Opinion Letters, on Home-to-Office Travel Time and Live-In Caregivers

By Allan Bloom on January 5, 2021 Posted in FLSA, Wage and Hour

On December 31, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued two opinion letters—one on home-to-office travel time and one on live-in caregivers. Such “lame duck” opinion letters—issued post-Election Day when there is a change in both administration and political party—were at one point in recent memory quite uncommon. The Carter administration issued a single wage and hour opinion letter following President Reagan’s election in late 1980, and George H.W. Bush’s and Bill Clinton’s administrations each issued four such opinion letters (following the 1988 and 2000 elections, respectively). The practice of issuing lame duck opinion letters spiked following the 2008 election of President Obama—WHD issued no fewer than 48 opinion letters between November 4, 2008 and January 20, 2009, in the waning days of the G.W. Bush administration. President Obama’s DOL—which discontinued the practice of issuing wage and hour opinion letters in favor of publishing so-called “Administrator’s Interpretations”—issued none. WHD has issued a total of four since Election Day 2020.

Similar to “midnight regulations,” lame duck opinion letters provide an outgoing administration a last chance to articulate its policy priorities. Opinion letters issued by the WHD Administrator may be relied upon, pursuant to § 259 of the Fair Labor Standards Act (FLSA), as a good faith defense to wage claims—even if the opinion letters are later “modified or rescinded or … determined by judicial authority to be invalid or of no legal effect.” This said, the long-term efficacy of lame duck opinion letters is questionable, given the DOL’s ability to withdraw opinion letters that do not—or no longer—reflect the agency’s current position. (President Obama’s DOL withdrew a number of the G.W. Bush administration’s wage and hour opinion letters, several of which were later reissued by WHD during the Trump administration.)

In any event, WHD opinion letters provide a “safe harbor” for employers for as long as they exist, so let’s look at the two most recent ones.

Travel Time

In FLSA2020-19, WHD tackles the compensability of home-to-office travel time for an employee who chooses to work from home for part of the day from the office for part of the day, with sufficient time in between those working periods to perform personal tasks.

The opinion letter gives two examples, both of which involve an employee with a one-hour commute to and from her office who normally works Monday through Friday from 8:00 a.m. to 4:30 p.m. The employee performs no work during her commutes.

In the first example, an employee begins the work day at the office, and receives permission to attend a parent-teacher conference at her child’s school from 1:30 p.m. to 2:15 p.m. and to work the remainder of the day from her home. She leaves the office at 1:00 p.m., drives 30 minutes to the school, meets with the teacher for 45 minutes, and then spends 30 minutes driving home. The question is whether the time spent driving from the office to the school and from the school to home is compensable, assuming that—at some point after returning home—the employee resumes working.

WHD begins by outlining a number of the fundamental rules and principles governing compensable work:

Whether an employee is “working” typically depends on whether her activity is primarily for the benefit of the employer.
Employees don’t have to be paid for time spent “off duty”—periods during which they are completely relieves from duties and that are long enough to enable them to effectively use the time for their own purposes.
Ordinary “commute” time—from home to work at the beginning of the work day and from work to home at the end of the work day—is not compensable.
Travel that is part of an employee’s principal work activities—such as travel between different worksites during the work day—is compensable under the “continuous workday” doctrine.

Applying these basic principles to the first example, the employee is considered “off duty” once she leaves the office at 1:00 p.m. to drive to the parent-teacher conference. The employer is not obligated to pay the employee until she resumes work after arriving at home.

In the second example, an employee begins working from home, then drives to a doctor’s appointment, and then drives to the office to work the remainder of the day. As with the first example, none of the employee’s travel time is compensable. The time spent working from home before the doctor’s appointment is compensable, just as it would be in the office. But once she stops working, her time remains noncompensable until she reaches the office and resumes work.

In each of the examples, the travel time does not fall within the “continuous workday” rule, as the employer is not requiring the employee to travel as part of her work. To the contrary, she is traveling of her own volition for personal purposes during off-duty time. WHD summarizes:

When an employee arranges for her workday to be divided into a block worked at home and a block worked at the office, separated by a block reserved for the employee to use for her own purposes, the reserved time is not compensable, even if the employee uses some of that time to travel between home and the office.

WHD references several court opinions that reach a similar conclusion, including Kuebel v. Black & Decker Inc., in which the Second Circuit held that an employee’s morning and evening commutes were not compensable even though the employee performed various job-related tasks immediately before leaving home and/or immediately after returning home (such as checking email, syncing a PDA, and printing a sales report).

In-Home Caregivers

In FLSA2020-20, WHD examines the practice of paying overtime based on an expected number of hours worked to live-in caregivers who work extended shifts of 24 hours or more, and specifically, whether such overtime payments can be excluded from the regular rate and credited toward the amount of overtime pay owed.

In the fact pattern presented, it is difficult, if not impossible, to track the hours during which live-in and 24-hours-or-more shift caregivers perform compensable work (as opposed to being able to use time effectively for their own purposes). The employer, therefore, assumes that the entire extended shift is compensable, excluding bona fide meal periods and sleep periods of up to eight hours per day. The employer tracks and counts as hours worked any work-related interruptions to meal or sleep periods, and counts the entire sleep period as hours worked if such interruptions prevent the caregiver from getting the required minimum of sleep time per day.

Pursuant to a written agreement with the caregiver, the employer pays overtime compensation based on the anticipated number of hours that the caregiver will work each workweek. If the caregiver exceeds the anticipated number of hours, the employer supplements the “prepaid” compensation with additional overtime payments. All overtime hours are paid at one and one-half times the employee’s regular hourly rate of pay. In addition, the employer pays time-and-a-half for each hour worked in excess of eight in a day, even if weekly hours don’t exceed 40.

Under § 207(e) of the FLSA, only eight discrete categories of compensation can be excluded from the regular rate on which overtime pay is computed. Unless excludable, compensation must be considered part of the regular rate and included in the overtime calculation. One of the excludable categories is extra compensation provided by a premium rate paid for certain hours worked in any day or workweek because such hours are in excess of eight in a day or 40 in a workweek (§ 207(e)(5)). Not only are those extra premiums excludable from the regular rate, they can be applied as a credit toward overtime pay owed for the week (§ 207(h)(2)). So for example, if an employer pays an overtime-eligible employee whose pay rate is $20 an hour “double time” (i.e., $40) for any hours beyond eight in a day, it can not only exclude the $20-per-hour extra payments from the regular rate, it can take a credit for the $20-per-hour extra payments toward any overtime it owes the employee for the workweek.

On the facts presented, WHD concluded that the premiums paid for hours worked in excess of eight in each day may be excluded from the regular rate under § 207(e)(5) and credited toward any overtime owed under § 207(h). As to the “prepaid” overtime (based on anticipated hours), if the employee works the expected number of hours, the agreed-upon premium paid at time-and-a-half for the expected overtime hours would fulfill any overtime obligations. If the employee works more than the expected number of hours, the employer would have to supplement pay, at time-and-a-half for each additional hour.

Final Thoughts

With slightly more than two weeks left in the Trump administration, it’s quite possible we’ll see some additional opinion letters from WHD before President-Elect Biden takes office. We’ll report on them if and as they’re published.

Tags: department of labor, Federal, FLSA, overtime, wage and hour

Congress Extends FFCRA Tax Credit into 2021, Declines to Extend FFCRA Leave

By Evandro Gigante, Harris Mufson, Alex Downie and Abigail Rosenblum on December 28, 2020 Posted in Coronavirus, Leaves of Absences

The federal Families First Coronavirus Response Act (“FFCRA”), which requires that employers with fewer than 500 employees provide sick and family leave benefits for certain COVID-19 related reasons, is due to sunset on December 31, 2020. Many believed that the FFCRA’s sick and family leave provisions would be extended into 2021 as part of the pandemic relief package that was signed by the President on December 27. However, these provisions were ultimately not extended, meaning that employers will not be required to provide paid leave under the FFCRA after December 31, 2020.

Despite that the FFCRA’s leave provisions were not extended into 2021, the relief package extends the FFCRA tax credit, which reimburses employers for the cost of providing FFCRA leave, through March 31, 2021. As a result, beginning on January 1, 2021, employers are no longer required to provide FFCRA leave; however, covered employers who voluntarily offer such leave may utilize payroll tax credits to cover the cost of benefits paid to employees through the end of March. The relief package does not change the qualifying reasons for which employees may take leave, the caps on the amount of pay employees are entitled to receive, or the FFCRA’s documentation requirements.

The law also does not change the amount of leave that employees are entitled to take under the FFCRA. Under the FFCRA, full time employees are entitled to a one-time allotment of 80 hours of paid sick leave and 12 weeks of expanded family medical leave. Therefore, an employer is not entitled to a second tax credit for an employee taking leave in 2021, when that employee already took leave in 2020. However, if an employer allows an employee to take a second period of expanded FMLA leave because the employer’s calendar year has reset – for example, because the employer uses the “calendar year” under its FMLA policy – the employer may be able to claim a tax credit for the second round of expanded FMLA benefits paid to the employee in 2021. We are closely monitoring guidance on the FFCRA and will continue to provide updates if additional guidance on this point is made available.

Despite that employers are no longer required to provide FFCRA leave after the first of the year, employers should be mindful that some states and localities have enacted COVID-19 leave laws, which may or may not expire at the end of the year. For example:

New York State’s quarantine leave law, which requires that New York employers provide job-protected sick leave to employees who are subject to a mandatory or precautionary order of quarantine or isolation, does not expire at the end of the year.
On the other hand, Colorado’s COVID-19 leave law sunsets on December 31, 2020, although the State’s paid sick leave program begins phasing in on January 1, 2021.
California’s COVID-19 leave law expires on December 31, 2020 or upon the expiration of the paid sick leave provisions of the FFCRA. Although the federal relief bill allows employers to claim a tax credit for paid sick leave provided into 2021, it does not appear to change the expiration date of the paid sick leave provisions of the FFCRA. Therefore, unless the state amends the law or issues guidance to the contrary, California’s leave law will likely expire at the end of the year. However, unlike the federal FFCRA, the California law allows an employee who is on leave on the date that the law expires to complete their leave, even if this extends the leave period past the law’s expiration date.

Our other posts on the FFCRA are available on our Law and the Workplace blog.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

Tags: california, Colorado, Emergency Family and Medical Leave Expansion Act, Emergency Paid Sick Leave Act, Families First Coronavirus Response Act, FFCRA, new york state