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On March 18, 2020, the President signed the Families First Coronavirus Response Act (the “Act”) into law which, among other things, creates new paid leave rights for certain absences related to COVID-19: (1) emergency paid sick leave for certain absences related to COVID-19 and (2) partially paid FMLA leave for employees unable to work due to school closures, daycare closures, or unavailable paid childcare as a result of COVID-19. The Act applies to all employers with fewer than 500 employees, including nonprofits, and goes into effect on April 2, 2020. Regulations addressing aspects of the Act, such as possible exceptions and tax credits, are expected to be issued on an expedited basis. The following is a summary of leave-related provisions of the Act as of March 19, 2020.

Emergency Paid Sick Leave Act

What reasons qualify for emergency paid sick leave?
Emergency paid sick time must be provided to employees who cannot work (or telework) due to a need for leave because:

(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 due to concerns related to COVID-19.
(3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
(4) The employee is caring for an individual who is subject to an order as described in paragraph (1) or has been advised as described in paragraph (2). (Note, this individual need not be a family member.)
(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Which employees are eligible to take emergency paid sick leave?
All employees, regardless of when hired, are eligible. However, employers can exclude “health care providers,” as that term is defined in the Family and Medical Leave Act (“FMLA”), and “emergency responders.” The Term “emergency responders” is not defined by the Act or the FMLA but may be defined in the DOL’s forthcoming regulations.

How much emergency paid sick leave are employees entitled to?
Full-time employees are entitled to 80 hours of paid leave. Part-time employees are entitled to the number of hours the employee works, on average, over a 2-week period. If a part-time employee’s hours cannot be determined because the employee worked varying schedules, the employer must calculate the average hours scheduled per day (including hours not worked due to leave of any type) over the 6 month period preceding the emergency paid sick leave. If the employee did not work over this period, the applicable number of hours is determined by the employee’s reasonable expectation at the time of hiring of the average number of hours per day the employee would normally be scheduled to work. The Department of Labor has been ordered to issue further guidelines on calculating the amount of emergency paid sick leave within 15 days.

How much must employees be paid?
If the leave is because the employee is experiencing any of the circumstances listed above in items (1), (2), or (3), the employee must be paid the higher of their regular rate of pay or any applicable minimum wage required by law, subject to a daily cap of $511 and aggregate cap of $5,110. Thus, if an employer normally takes a tip credit, a tipped employee using emergency paid sick leave must be paid the higher minimum wage.

If the leave is for any of the reasons in items (4), (5), or (6), the employee must be paid two-thirds of the higher of their regular rate of pay or any applicable minimum wage required by law, subject to a daily cap of $200 and aggregate cap of $2,000.

Will small employers with fewer than 50 employees be treated differently?

At present, no. However, the Act allows the Department of Labor to issue regulations on an expedited basis that exempt small employers with fewer than 50 employees from the requirement of providing paid leave because an employee cannot work due to the closure of a son or daughter’s school or unavailability of child care if doing so would jeopardize the viability of the business as a going concern.

Does the Act provide tax credits for payments made pursuant to the Act?
Yes, the Act describes certain tax credits for payments made by employers for emergency paid sick leave under the Act. Consult your tax attorney or accountant.

Must employers notify employees about emergency paid sick leave?
Yes, employers must post a notice of rights. The Department of Labor has been ordered to provide a model notice within seven days.

Is there any waiting period before an employee can use emergency paid sick leave?
No, emergency paid sick leave is available immediately, regardless of how long the employee has been employed.

Can employers require that employees use any other paid leave before using emergency paid sick leave?
No.

May employers require employees search for or find a replacement to cover the hours when they are using emergency paid sick leave?
No.

Must employees give notice of their need to use emergency paid sick leave?
After the first day (or partial day) of absence, employers may require employees to follow reasonable notice procedures in order to continue to receive emergency paid sick leave.

Can employers require proof of the reason for the employee’s absence?
The Act does not specifically allow or prohibit requiring proof of an employee’s reason for leave.

When does an employee’s ability to use emergency paid sick leave end?
Emergency paid sick leave shall cease beginning with the employee’s next scheduled work-shift immediately following the end of the need for it.

Does the Act include anti-retaliation provisions?
Yes. The Act states employees are protected only if they (a) take emergency paid sick leave and (b) take actions to enforce the Act or are about to or do testify in an enforcement proceeding. While a literal reading would require an employee to take leave and file a complaint to be protected, employers are cautioned against terminating any employee for taking emergency paid sick leave.

Are employers required to pay employees for unused emergency sick leave upon termination of employment?
No.

Does emergency paid sick leave carry over from year to year?
No. The Act expires on December 31, 2020.

What are the consequences of not paying emergency paid sick leave?
Employers can be sued for back pay, an equivalent amount as “liquidated damages,” and attorney’s fees. Employers can also be assessed a civil penalty of up to $1,100 per violation.

Emergency FMLA for School Closures or Lack of Paid Childcare (EFMLA)

For what reason can employees take EFMLA?
EFMLA is available if an employee cannot work (or telework) due to a need to care for a son or daughter under 18 years of age because the child’s school or place of care has been closed or the paid child care provider is unavailable due to an emergency with respect to COVID-19 declared by a federal, state, or local authority.

Which employees are eligible?
Any employee who has been employed by the employer for at least 30 calendar days is eligible. This is different from the normal FMLA eligibility requirements of 12 months of employment and 1,250 hours worked during the preceding year.
Employers may elect to exclude “health care providers” and “emergency responders.” The Act also allows the Department of Labor to issue regulations on an expedited basis that would exclude “certain health care providers” and “emergency responders” from taking emergency FMLA. Presumably, “health care providers” has the meaning given under the FMLA. The term “emergency responders” is not defined by the Act or the FMLA but may be defined in the DOL’s forthcoming regulations.

Will small employers with fewer than 50 employees be treated differently?
At present, no. However, the Act allows the Department of Labor to issue regulations on an expedited basis that exempt small employers with fewer than 50 employees if requiring compliance would jeopardize the viability of the business as a going concern.

How much EFMLA is available?
Up to 12 weeks.

What portion of EFMLA must be paid?
An employer is not required to pay the first 10 days of EFMLA and cannot require the employee to use available paid time benefits during this initial period. By contrast, the employee has the right to substitute any accrued paid vacation, personal leave, or medical or sick leave, including the emergency paid sick leave described above, if the employee chooses.

How much does the employer have to pay the employee after the first 10 days?
Two-thirds of the employee’s regular rate of pay (as determined under the Fair Labor Standards Act) for the number of hours the employee would otherwise normally be scheduled to work, subject to a cap of $200 per day and $10,000 in the aggregate. If this number of hours cannot be determined because the employee worked varying schedules, the employer should calculate the average hours scheduled per day (including hours not worked due to leave of any type) over the 6 month period preceding the emergency FMLA leave. If the employee did not work over this period, the applicable number of hours is determined by the employee’s reasonable expectation atthe time of hiring of the average number of hours per day the employee would normally be scheduled to work.

Do an employee’s benefits continue while on emergency FMLA?
Yes, employee benefits continue to the same extent as required for other types of FMLA leave.

Does the Act provide tax credits for payments made pursuant to the Act?
Yes, the Act describes certain tax credits for payments made by employers for emergency paid sick leave under the Act. Consult your tax attorney or accountant.

Are employees entitled to reinstatement to the same or an equivalent job?
Generally, yes. The Act does not create a new reinstatement right but instead simply uses the existing reinstatement right created by the FMLA. Notably, the existing reinstatement right created by the FMLA generally does not require reinstatement if an employee’s position is eliminated during an FMLA leave and the employer can show the position would have been eliminated even if the employee had been at work. 29 C.F.R. § 825.216(a)(1).

Strangely, the Act appears to alter this rule only for employers with fewer than 25 employees. More specifically, the Act states reinstatement by an employer with fewer than 25 employees is not required if all of certain conditions are met (including the elimination of the position for reasons caused by a public health emergency during the leave and making attempts to reach the employee if an equivalent position becomes available within a year after the earlier of end of the employee’s 12 weeks of leave or the end of the qualifying need for leave).

What other protections apply to employees who take emergency FMLA leave?
Like other types of FMLA leaves, employees are protected from interference with their rights and retaliation for exercising protected rights. Small employers with fewer than 50 employees are shielded from certain types of damages in the event of lawsuits for such violations.

Can employers require certification of the need for leave?
The Act does not specifically allow or prohibit requiring certification.

Must employees provide notice of the need for emergency FMLA leave?
To the extent the need for leave is foreseeable, employees must give as much notice as is practicable.

Must employers notify employees about the availability of emergency FMLA leave?
The Act does not specifically address this question, but ordinarily the FMLA requires posting and, for most employers, a policy. In addition, the FMLA ordinarily requires that employers provide eligibility notice and other information following an employee’s request for leave. The DOL’s forthcoming notice may provide further guidance.

Does the Act include anti-retaliation provisions?
The Act amends the FMLA, which includes anti-retaliation provisions.

Tax Issues Relating to Both New Types of Paid Leave


We are not tax lawyers! Please consult your tax counsel regarding how to treat payments to employees under Section 7005(a) the Act which includes this statement:
Any wages required to be paid by reason of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act shall not be considered wages for purposes of section 3111(a) of the Internal Revenue Code of 1986 or compensation for purposes of section 3221(a) of such Code.

Boulette Golden & Marin Partner and  Co-founder, Jason Boulette, was featured in a February 2020 Austin Business Journal Profile.  Giving the reader a perspective not found on LinkedIn, the Journal Profile seeks to illuminate the interests AROUND work that make business leaders like Jason so successful – in business AND in life.

Read the Full Article here: Austin attorney Jason Boulette opens up – Austin Business Journal

Boulette Golden & Marin L.L.P. partner Ann Price will present a talk entitled “#MeToo – Don’t Let it Happen in Your Workplace”.

Where:

Texas Hill Country Wineries

When:

January 23rd

The organization of 52 wineries is hosting the session for members’ tasting room managers at the Inwood Estates Winery, and Ms. Price is scheduled to address the group as featured speaker at 10:30am. Additional information>>.

Our very own Jason Boulette has thrown his hat in the ring as a potential speaker at the SXSW 2019 conference. SXSW is using a voting process as one of their criteria for final selection, known as the Panel Picker.

If you are so inclined, please let SXSW 2019 know that you think he’d contribute to a strong line-up. Note that you will have to sign in or create an SXSW account. If that’s a deal-breaker, no worries. Otherwise, we would truly appreciate the support. Community voting will be live August 6 – August 30

Read More

The 2018 edition of Best Lawyers in America, published by U.S. News & World Report has been released and Boulette, Golden & Marin L.L.P. is proud to announce the inclusion of six attorneys from the firm. The rankings represent recognition for professional excellence with persistently impressive ratings from clients and peers.

Honored this year:

  • Jason S. Boulette, Partner (13th consecutive year)
    • Employment Law – Management
    • Labor Law – Management
  • Michael J. Golden, Partner (3rd year)
    • Employment Law – Management
  • Michael D. Marin, Partner (10th consecutive year)
    • Commercial Litigation
  • Ann Price, Partner (2nd year)
    • Employment Law – Management
  • Laura Merritt, Partner
    • Employment Law – Management
  • Tanya DeMent, Associate Attorney
    • Litigation, Labor and Employment

Boulette Golden & Marin L.L.P. has once more been included in the 2018 edition of Best Law Firms in America, a peer review guide to the legal profession worldwide, published by U.S. News & World Report.

Read More

Boulette Golden & Marin L.L.P. partner Ann Price will address the 2017 Austin CPA Chapter Annual Tax Conference Monday November 13, 2017 at the Norris Conference Center in Austin.

Ms. Price’s presentation:

“What You Always Wanted to Know About Employment Law But Were Afraid to Ask”. She her speak at for 10:00am. Additional information >>>

This years conference hosted 110 CPAs and 16 different topics and speakers.

 

 

Boulette Golden & Marin L.L.P. partner Jason Boulette will be speaking at the 41st Annual UT Law CLE Page Keeton Civil Litigation Conference in Austin November 2-3, 2017.

Mr. Boulette’s presentation, “From Parties to Presidents: Dealing With Decision-Maker Commentary”, is scheduled for 9:30am Thursday, November 2nd. The conference will take place at Austin’s Renaissance Hotel. Additional information>>>

About the Conference

Leading litigators, judges, and law professors meet at the 41st Annual Page Keeton Civil Litigation Conference at the Renaissance Hotel in Austin. Some featured topics include:

  • Updates and Opportunities: civil procedure, 85th Texas Legislature, unlawful animus, Anti-SLAPP, and business torts and damages
  • Litigations Skills: opening and closing arguments, demonstrative evidence, difficult witnesses, and voir dire
  • Litigation in the Real World: advocacy in a post-truth world, bad facts, arbitration, monitored conversations
  • Litigation in a Digital World: e-discovery, social media, and data security
  • Earn up to 12.00 hours, including 3.00 hours of ethics, with this and much more

ESPN Sports Business Reporter Darren Rovell quoted our own Mike Golden as one of the “half-dozen experts” contacted nationwide on the issue of Jerry Jones’s threat that Dallas Cowboys players who did not stand for the National Anthem would be benched. ESPN shared Mike’s analysis along with the thoughts of professors from law schools across the country.

ESPN’s question:

Whether it would violate any employment laws for the Cowboys to refuse to allow players to play if they did not stand for the National Anthem.

The Answer:

While there was some disagreement, the majority of the experts and Mike came to the same conclusion: the Cowboys would not be violating the law by sitting players who did not stand. Full article>>>

Ann Abrams Price, partner at Boulette Golden & Marin L.L.P. is scheduled to speak to the Texas Council on Family Violence’s annual Executive Directors’ Conference for Family Violence and Sexual Assault Programs. Ms. Abram’s breakout session, titled “FLSA Overtime Rule: What Do You Need to Know?” will begin at 3:30pm on Wednesday, February 15th, at the AT&T Executive Education and Conference Center in Austin.

Additional information >>>


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