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DOL Withdraws FLSA Inside Sales Exemption Lists

May 22, 2020 | Blog | By Morgan G. Tanafon

The U.S. Department of Labor (“DOL”) issued a new final rule on May 19, 2020 recasting the Fair Labor Standard Act’s (“FLSA”) inside sales exemption, Section 7(i). This new rule – which took effect immediately – repeals two lists that the DOL used for decades to interpret the exemption. The first list categorized businesses which lacked “retail concept,” thus disqualifying the business from the exemption; the second list denoted establishments which “may be recognized as retail.” Now, in lieu of operating from these static lists, the DOL will instead evaluate businesses on a case-by-case basis to determine if they qualify for the exemption. The withdrawal of these lists expands the inside sales exemption to cover many industries and businesses that were categorically unable to qualify for the exemption under the previous rules.
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On Friday, May 15, 2020, the Small Business Administration, in consultation with the U.Sh Department of the Treasury, released the Paycheck Protection Program (PPP) Loan Forgiveness Application. The application is accompanied by instructions on how to complete the application. Together, the application and the instructions answer a number of ambiguities about whether and how an employer will be able to receive forgiveness of all or a portion of a loan received under the PPP.
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Part Ten of the COVID-19 Roadmap Series: Workplace Communications and Trainings

May 20, 2020 | Blog | By Tyrone Thomas, Danielle Bereznay

In the final part of our Roadmap Series, as employers prepare to transition to on-site operations for segments of their staff, we discuss considerations for COVID-19 related communications to the workforce. We also address the importance of conducting workplace trainings for managers and staff that address new regulatory considerations for workplace safety, telecommuting arrangements, health screenings, and leave and accommodation requests to prepare for the “new normal.”
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Part Nine of the COVID-19 Roadmap Series: Ensuring Compliance – Leave Management

May 18, 2020 | Blog | By Corbin Carter, Natalie Young, Michael Arnold, Andrew Matzkin

As management and human resources professionals are well aware, COVID-19 has drastically and rapidly impacted the workplace. Among other things, employees require more flexibility, employers are increasingly reliant upon remote work arrangements, and legislative and administrative responses to the pandemic from various levels of government have created new requirements for businesses, including new leave entitlements for employees. In Part Nine of our Roadmap Series, we explore key considerations surrounding leave management and compliance as employees and businesses navigate this new terrain.
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Part Eight of the COVID-19 Roadmap Series: Avoiding COVID-19 Wage & Hour and Labor Law Pitfalls

May 15, 2020 | Blog | By Jennifer Budoff, Delaney Busch, Brendan Lowd

n Part Eight of our Roadmap Series, we take a closer look at wage and hour compliance concerns that may arise during the COVID-19 pandemic, and what employers can do to minimize these pitfalls.

Remember that wage and hour concerns, and how to properly address them, will often depend on whether a company is dealing with exempt employees (i.e., employees not entitled to overtime pay regardless of the number of hours worked in a day or week) or non-exempt employees (i.e., employees entitled to overtime pay if the employee works more than eight hours a day or forty hours in a week, depending on the state). This critical distinction will largely govern how employers should consider and plan for the issues described below.
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Updated: EEOC Issues ADA and Title VII Guidance for Employers on COVID-19

May 14, 2020 | Blog | By Brie Kluytenaar, Danielle Bereznay

Updated: The EEOC has provided employers with supplemental guidance on navigating the COVID-19 outbreak, addressing issues such as COVID-related harassment and screening employees who are reporting to work. The EEOC reminded employers that while the anti-discrimination laws, including the ADA and the Rehabilitation Act, continue to apply during the COVID-19 pandemic, these laws do not interfere with, or prevent employers from following, the guidelines and suggestions issued by the CDC or state and local public health authorities regarding COVID-19.
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The WARN Act and COVID-19: What are Employers Obligated to Do?

May 14, 2020 | Blog | By Delaney Busch, Emma Follansbee

Facing the many challenges posed by the COVID-19 pandemic, employers are considering their obligations to their workforce in the event of a reduction in force related to COVID-19 (“COVID-19”). This post provides an overview of an employer’s WARN Act obligations in the event a COVID-19-related closure or reduction in force.
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Updated: Department of Labor Issues Guidance for Families First Coronavirus Response Act

May 13, 2020 | Blog | By Danielle Bereznay, Michael Arnold

On March 23, 2020, the Department of Labor (“DOL”) issued guidance regarding the Families First Coronavirus Response Act, which goes into effect on April 2, 2020. Here are the takeaways from the guidance.
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In Part Seven of our Roadmap Series, we take a closer look at the impact of COVID-19 on employee mental and physical well-being, and what employers can do to assist their workforce.
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A Refresher on California Reimbursement Requirements in a COVID-19 World

May 8, 2020 | Blog | By Micha Mitch Danzig, Nicole Rivers

Imagine that after weeks of working remotely due to COVID-19, you return to your office only to discover a stack of papers on your desk in a folder titled “requests for reimbursement.”  You peer through the contents and find cell phone bills, a receipt for a $750 printer, a bank statement with the account fees highlighted, a clothing store shipping invoice with $49.95 of expedited shipping, a receipt for a 50” television, and a screenshot of mobile payment service request with an electric plug emoji from a username you have never seen before.  Why are these documents on your desk and what do you have to do as an employer?

California Labor Code § 2802 (“Section 2802”) requires employers to reimburse California employees for “all necessary business expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.”   Its purpose is to prevent employers from passing their operating expenses to their employees.  However, Section 2802 only requires reimbursement for “necessary” and “reasonable” costs incurred by the employee as a condition of continued employment.  Previously, many employers allowed remote working as a convenience for their employees.  Because working remotely was not required, many employers could decline “work from home” reimbursements because the employee’s expenses were voluntary (i.e. the employee chose to work remotely).  However, COVID-19 and the resulting shelter-in-place orders have redefined the working landscape, requiring many employees to work remotely to keep businesses afloat. 
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Part Six of the COVID-19 Roadmap Series: Reporting to Work

May 7, 2020 | Blog | By Andrew Bernstein, Brie Kluytenaar

As we continue to plan and prepare for the reopening of businesses, Part Six of our Roadmap series examines the when, what, where, and how of returning to work. Given the many considerations this process entails, we encourage employers to begin engaging with these issues now and to consult with counsel so that plans are in place and the groundwork is laid for the eventual reopening of the workplace, whenever that may be.
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Part Five of the COVID-19 Roadmap Series: Ensuring a Safe Workplace - COVID-19 Screening and Testing

May 6, 2020 | Blog | By Nicole Rivers, Michael Arnold, Karen Lovitch, Hope Foster, Cynthia Larose

In Part 5 of our Roadmap Series, we take a closer look at COVID-19 screening and testing, including best practices and legal implications, as potential tools to maintain a safe workplace.
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Given the challenges presented by COVID-19, many businesses must consider large-scale, transformational changes to their operations. As social distancing continues and safety concerns pervade the public consciousness, adjustments to the physical workspace and business travel practices will be necessary to reflect these new considerations. In Part 4 of our COVID-19 Roadmap Series, we outline important planning steps and concerns employers need to consider relating to physical workspaces and business travel.
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On March 25, 2020, New Jersey expanded the scope of leave available to employees in light of the COVID-19 pandemic. This legislation, S2304, affects New Jersey’s Earned Sick Leave Law, Family Leave Act, and Temporary Disability Benefits Law, altering them to increase coverage in public health emergency situations. Importantly, these alterations are permanent and apply to situations beyond the COVID-19 pandemic. New Jersey employers should become familiar with the newly expanded leave laws and make it a priority to adjust their employee leave policies accordingly. This post highlight S2304’s most significant changes.
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In Part 3 of our Roadmap Series, we outline important guidance, procedures, and concerns employers need to consider to successfully and safely bring back employees to their worksite. As authorities begin reopening economies and traditional workplaces once again open for business, employers are facing difficult challenges regarding reorganizing and protecting their places of business. However, the exact measures appropriate and effective for each workspace will depend heavily on the outcome of a worksite risk assessment.
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On April 29th, in connection with the National Emergency declaration related to COVID-19, the Department of Labor, the Department of the Treasury, and the Internal Revenue Service (the “Agencies”) jointly issued a final emergency regulation which aims to minimize the loss of employee benefits due to certain ERISA and Internal Revenue Code-related compliance failures. Specifically, the final regulation provides relief for HIPAA special enrollment rights, COBRA elections and notices, and ACA-mandated internal and external review timeframes. According to the final regulation, plans must disregard the period from March 1, 2020 until sixty (60) days after the announced end of the National Emergency, or such other date announced by the Agencies in a future notice. This period is referred to as the “Outbreak Period.”
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FINRA Fines Broker-Dealer for Sharing Customer Data with Third-Party Vendor

April 30, 2020 | Blog | By Pete Michaels, David L. Ward

Kestra Investment Services LLC (“Kestra”) was fined $125,000 by FINRA for sharing personal customer data with a third-party vendor.
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Updated: COBRA Coverage – FAQ for the COVID-19 Economy

April 29, 2020 | Blog | By Patricia Moran

Given the possible health impacts of COVID-19, maintaining access to health care and insurance coverage is front of the mind for just about everyone. Continuation coverage under COBRA offers employees a route to continue job-based coverage in the event of job loss or reduction of hours.
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The Impact of the CARES Act on 401(k) and Other Defined Contribution Plans

April 28, 2020 | Blog | By Alden Bianchi, Patricia Moran

In a previous post, we covered the impact of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) on employee welfare benefit plans, programs, and arrangements. This post explains how this new law affects tax-qualified 401(k) and other defined contribution plans.
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