Author Archive: towzey1220towzey

UNDERSTANDING THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT

THIS DOCUMENT IS CURRENT AS OF March 23, 2020.

THE ANALYSIS IS SUBJECT TO CHANGE AS REGULATIONS ARE PROMULGATED.

Please note that this law contains many other provisions unrelated to employment, pertaining to areas such as health care, veterans services, social services emergency funding, school lunches, SNAP,  and more, all related to a public health emergency.  Also contained in the Act are specific provisions regarding federal funding for unemployment benefits, which also is not discussed here.

This is an overview only of the emergency paid leave and FMLA emergency provisions of the new law, and new guidances released by the Equal Employment Opportunity Commission (EEOC):

Under the Emergency Paid Sick Leave Act  (Section 5101 et seq) employers must provide additional paid sick leave to employees specifically for COVID-19 related issues. (Note: There are some exemptions for health care workers and emergency response personnel, which is discussed separately below). An employer cannot require an employee to use up their PTO before using the paid leave provided for under this law. This law, which applies to all companies with up to 500 employees, provides that employees can take leave if:
  1. The employee is subject to a quarantine order
  2. A health care provider instructed the employee to self-quarantine
  3. The employee is experiencing symptoms of COVID-19
The employer must pay the employee their regular rate up to a max of $511 per day for two weeks (i.e. 10 workdays) for full time employees (prorate it for part time employees – they would get paid for the number of days they ordinarily work in a two-week period).
Employees may also take this leave under the following conditions, but are only paid up to $200 per day:
  1. Caring for an individual who is quarantined
  2. School closed and no childcare is available for the Employee’s minor children*
  3. Other conditions to be specified by the Department of Health and Human Services and the Department of Labor
*There is a provision in the law that the Secretary of Labor may promulgate regulations that would exempt a business with less than 50 employees from providing leave under No. 5 above if such leave would “jeopardize the viability of the business as a going concern.”

 

The employer then gets a tax credit off their FICA contribution in the amount paid to employees, as explained in more detail below. So the idea is that the government is in effect paying for this – but it’s coming out of the business’s pocket first.

The new Emergency Family Medical Leave Expansion Act (Section 3101 et. seq.) also applies to all employers up to 500 employees, not only to employers with 50 or more employees covered under the original FMLA.  The Act specifically provides that the Secretary of Labor can issue regulations that would exempt small businesses with fewer than 50 employees from the paid leave requirement described below if that requirement “would jeopardize the viability of the business as a going concern.”  However, those regulations have not been issued yet. (Note: There are some exclusions for health care workers and emergency response personnel, which is discussed separately below).

In addition to removing the 50 employees requirement in the FMLA  this new leave eligibility, the law adds the following as a basis for FMLA leave: “a qualifying need related to a public health emergency.” COVID-19 is, of course, a public health emergency. The law defines a qualifying need as: “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”

Under the Act, the employees can take up to 12 weeks off if they are needed to care for a child under age 18 if the schools have been closed by a government order and no daycare is available. This leave is available to all employees who have been employed at least 30 days. The first two weeks are unpaid (because they are already being paid under the Emergency Sick Leave Act discussed above).

On March 18, 2020, Congress passed the Families First Coronavirus Response Act, which includes the Emergency Paid Sick Leave Act and the Emergency Family Medical Leave Expansion Act. These laws go into effect on April 2 at the latest (not later than 15 days from enactment), and they change (for now) the way sick leave and FMLA leave is treated.

A copy of the full text of this Act is available here:

https://www.congress.gov/bill/116th-congress/house-bill/6201/text

Please note that this law contains many other provisions unrelated to employment, pertaining to areas such as health care, veterans services, social services emergency funding, school lunches, SNAP,  and more, all related to a public health emergency.  Also contained in the Act are specific provisions regarding federal funding for unemployment benefits, which also is not discussed here.

This is an overview only of the emergency paid leave and FMLA emergency provisions of the new law, and new guidances released by the Equal Employment Opportunity Commission (EEOC):

Under the Emergency Paid Sick Leave Act  (Section 5101 et seq) employers must provide additional paid sick leave to employees specifically for COVID-19 related issues. (Note: There are some exemptions for health care workers and emergency response personnel, which is discussed separately below). An employer cannot require an employee to use up their PTO before using the paid leave provided for under this law. This law, which applies to all companies with up to 500 employees, provides that employees can take leave if:

  1. The employee is subject to a quarantine order
  2. A health care provider instructed the employee to self-quarantine
  3. The employee is experiencing symptoms of COVID-19

The employer must pay the employee their regular rate up to a max of $511 per day for two weeks (i.e. 10 workdays) for full time employees (prorate it for part time employees – they would get paid for the number of days they ordinarily work in a two-week period).

Employees may also take this leave under the following conditions, but are only paid up to $200 per day:

  1. Caring for an individual who is quarantined
  2. School closed and no childcare is available for the Employee’s minor children*
  3. Other conditions to be specified by the Department of Health and Human Services and the Department of Labor

*There is a provision in the law that the Secretary of Labor may promulgate regulations that would exempt a business with less than 50 employees from providing leave under No. 5 above if such leave would “jeopardize the viability of the business as a going concern.”

The employer then gets a tax credit off their FICA contribution in the amount paid to employees, as explained in more detail below. So the idea is that the government is in effect paying for this – but it’s coming out of the business’s pocket first.

The new Emergency Family Medical Leave Expansion Act (Section 3101 et. seq.) also applies to all employers up to 500 employees, not only to employers with 50 or more employees covered under the original FMLA.  The Act specifically provides that the Secretary of Labor can issue regulations that would exempt small businesses with fewer than 50 employees from the paid leave requirement described below if that requirement “would jeopardize the viability of the business as a going concern.”  However, those regulations have not been issued yet. (Note: There are some exclusions for health care workers and emergency response personnel, which is discussed separately below).

In addition to removing the 50 employees requirement in the FMLA  this new leave eligibility, the law adds the following as a basis for FMLA leave: “a qualifying need related to a public health emergency.” COVID-19 is, of course, a public health emergency. The law defines a qualifying need as: “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”

Under the Act, the employees can take up to 12 weeks off if they are needed to care for a child under age 18 if the schools have been closed by a government order and no daycare is available. This leave is available to all employees who have been employed at least 30 days. The first two weeks are unpaid (because they are already being paid under the Emergency Sick Leave Act discussed above).

After the first two weeks:

  • Employee must be paid at 2/3 of regular rate
  • Pay is capped at $200 per day and $10,000 in aggregate over the full ten weeks

The job restoration requirement at the end of the FMLA leave has been relaxed somewhat for employers who have less than 25 employees, if the position no longer exists due to business changers that resulted from the effect of COVID-19 on the business. However, the employer must make reasonable efforts to restore the employee to a similar job, and if there is none, must contact the employee later if one becomes available.  The obligation to contact the employee continues for one year from the earlier of the date the public health emergency ends or the date the employee began their leave. (See Section 3102 (b), amending FMLA 29 U.S.C. 2611 et seq to add Section 110, Public Health Emergency Leave, amending Section 104(a)(1) Restoration to Position).

As of now, this expansion of the FMLA is in effect until December 31, 2020.

Regulations are supposed to come out this week that will hopefully provide more clarity.

The best practice for employers right now – particularly since changes in the law and regulations to be promulgated under it can occur rapidly –  is not to make any decisions about sick leave or other leave related to COVID-19 without contacting employment law counsel first.

Note that this Act does not affect sick leave or FMLA leave for any other reason separate from the current COVID-19 threat to public health.

Exclusions for Health Care workers and Emergency Responders

Both laws authorize the Secretary of Labor to provide certain exclusions for “health care workers and emergency responders,” but neither law defines those terms.

Until the regulations are released, it makes sense to review the definitions of “essential workers” in fighting the pandemic that has been compiled by the Department of Homeland Security. This list is available in the following Fortune Magazine article:

https://fortune.com/2020/03/20/essential-workers-government-list-employees-coronavirus/

Understand, however, that the DHS list is much broader than the terms “health care workers and emergency responders” noted in the Act, as it also includes agricultural workers, bank employees, and a number of other categories. However, it can be helpful to review who the DHS includes as “health care and public workers” in its definition, specifically: “Hospital and laboratory personnel, caregivers, mental health workers, doctors, nurses, researchers, pharmacists, dentists, social workers, technicians, as well as funeral home and cemetery workers.”  The DHS defines “law enforcement, public safety, and first responders” as: “Emergency management personnel, including police officers, firefighters, paramedics, and emergency medical technicians. The list also includes 911 call center workers and those who oversee emergency service operations” and has a separate category for “Other community-based government operations and essential functions,” which are defined as: “Elections personnel, building employees, security staff, trade officials, weather forecasters, customs workers, and educators.”

To be clear, no one would be excluded from taking leave if they are in fact quarantined because they have contracted COVID-19, but employees on the excluded list would be ineligible to take time off for childcare due to school closings.

I will update this information as soon as regulations are issued.

Tax Credits for Paid Sick and Paid Family and Medical Leave

Under Sections 7001 and 7003, of the Act, employers can take 100% credit against the tax imposed by Section 3111(a) or 3221(a) of the Internal Revenue Code for qualified sick leave or emergency FMLA leave paid to employees.

Sections 7002 and 7004 contain provisions for self-employed individuals to take credit against their taxes for qualified leave they would have been eligible for if they were employed by an employer instead of by themself.

Penalties for Noncompliance

 Under the Emergency Paid Sick Leave Act, an employer who discharges or otherwise retaliates against an employee for taking leave under the Act or filing a complaint about noncompliance under the Act, will be treated as if they failed to pay minimum wages under the Fair Labor Standards Act, and subject to liquidated damages (2 x amount owed) and other penalties imposed by the Department of Labor. (See Section 5101).

The penalties for noncompliance under the original FMLA also apply to this new expansion, with the exception that a business with less that 50 employees may not be subject to a civil lawsuit under Section 107(a) of the FMLA.  (I say ‘may’ because the language is not altogether clear on this point.)  Such businesses, however, would still be subject to enforcement action by the Department of Labor. (See Section 3014).

Other Considerations Regarding Federal Discrimination Laws

The EEOC has issued a new fact sheet (updated 3/19/20) describing actions employers may now take regarding job applicants and existing employees that would ordinarily be considered violations of the ADA, but are now deemed appropriate in the interests of public health.

These include additional health information you can obtain from an employee who calls in sick, taking the temperature of employees when they report to work, requiring that employees who exhibit symptoms stay home, issues involving requirement of doctors’ notes, screening job applicants for COVID-19, and withdrawing job offers.

The fact sheet is in a user-friendly format and is available here;  https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

FAQs

 My business operations are slowing down and revenue is decreasing as a result of COVID-19. Can I lay off employees whose services are no longer needed?

Yes. You can still lay off an employee for normal business reasons, or due to changing needs of your business that result from COVID-19.  However, you cannot lay them off or otherwise terminate their employment because they request time off due to COVID-19 or because you anticipate they might request such time off.

For example, a restaurant that can now only provide take-out services does not need the same number of servers and table bussers. Those individuals can be laid off, and will be eligible for unemployment compensation.

  1. Is there any exemption for small businesses?

Yes, but it’s not been defined yet. The law provides that small businesses may apply to the Department of Labor for an exemption under certain circumstances (it appears to be an undue hardship standard), but the regulations governing this have not been issued yet.

  1. During the initial two-week period of the new FMLA leave, can the employee substitute their accrued paid sick leave, vacation leave, or other PTO instead of taking the Emergency Paid Sick Leave (which has a cap of $511 per day)?

Yes. Although the employer cannot require this, the employee can choose it.  For example, with higher compensated employees, their accrued leave may be higher per day than the emergency leave cap. This would be true of employees earning more than $63.87 per hour.

  1. How do I calculate the new FMLA paid leave if my employees worked a varied schedule with a different number of hours each week?

You average their weekly hours over the past 6 months.

  1. What if I want to pay my employees more or extend the paid leave longer?

You can do that, but as the law is currently written, you will only get the tax credit for paying within the prescribed caps.

  1. I have a part-time job working for an employer and I am also self-employed. If I receive the emergency paid sick leave or FMLA paid leave from my employer, can I also take a tax credit for days I was unable to work in my self-employed business?

As the law appears now, yes, you can do this, but you can’t “double-dip” – i.e. you can not take any credit which exceeds the daily caps. For example, under the $511 per day cap, if your part-time employer pays you $411 per day you could only take the tax credit for $100 per day from your self-employment business.

  1. I have less than 5 employees. Do these laws apply to me?

At present, yes, although regulations will be forthcoming that will allow small businesses to apply for an exemption if compliance would, as stated in the Act, “jeopardize the viability of the business as a going concern.”

  1. How does this new law affect salaried exempt employees?

This is not entirely clear. Under the Fair Labor Standards Act (FLSA), if an exempt employee works any part of a week, they must be paid their full salary for that week. The FLSA does provide, however, for absences to be deducted from a bona fide sick leave plan and, once those days/hours are exhausted, an exempt employee’s salary may be docked for full-day absences. However, under the Act, an employee cannot be required to exhaust their sick leave before using the emergency paid sick leave, which would indicate that the employer could not deduct a COVID-19 related absence from the exempt employee’s sick leave bank. My advice at this point, pending further clarification in the upcoming regulations, is to count the first 10 days of absence as protected under the Act and don’t deduct from the sick leave bank. If the exempt employee then goes out on FMLA, use any accrued sick leave in their bank to pay them at their regular salary level for those initial two weeks (or until their sick leave bank is exhausted). Then pay them in accordance with the Emergency Family Medical Leave Expansion Act.

Again, this advice may change as regulations are promulgated. Before dealing with this issue, consult your employment law attorney so you have most up-to-date information possible.

Also, remember, this is only for absences related to COVID-19 covered by the Act. Absences for any other reason should be treated under your customary policies.

  1. Can I require my employees to work from home?

Yes.

  1. What changes should I make in how my company does business?

First, consider whether it is possible to have employees work from home. If you do so, provide flexibility in schedules to enable employees to continue working productively even if they are dealing with childcare issues.  Having some flexibility could mean employees are able to effectively telework instead of going out on leave under the Act. This benefits both the company and the employee.  Do make sure, however, that employees working from home maintain accurate time records.

Second, for employees who are continuing to work in the office, establish policies to promote health. Provide soap in restrooms and encourage employees to wash their hands frequently. Send employees home if they are exhibiting symptoms. Have hand sanitizer (if you can find it) available, along with boxes of tissues. Limit outside vendors and other visitor access to the office. Wipe down door handles and office equipment. Do not hold in-person meetings in the office; have telephone conferences or video conferences instead. Ask your employees to maintain a 6 foot distance from each other. Ask your employees what other precautions they would suggest.

Third, consider whether you need to lay off or furlough employees. In many cases it’s better to take that action now, rather than deplete the company’s resources trying to stay in business when revenue is not being generated.  Being in a position later to reopen and recall your employees is better than struggle on until the business fails.

  1. What is the difference between laying off employees and furloughing them? What should I consider in making this choice?

In both instances, the employees will be eligible to receive unemployment compensation.

A lay off is a permanent termination of employment. The employment relationship is severed, although you certainly could rehire an employee at a later date.  If they were part of an employee group health insurance plan, the terminate then triggers their rights under COBRA.

A furlough is not permanent. It could be recurring (as in, employees are directed not to come to work every other week), or it could be for an indefinite period going forward (as in, don’t come back to work until we recall you).  A furloughed employee is still an employee of your business – it’s like being on an unpaid leave of absence. Check with your group health insurance provider regarding coverage during this time. Many health insurance plans have a minimum hours of work requirement for employees to remain eligible.

Remember, however, you cannot layoff or furlough an employee in lieu of providing the paid sick leave or paid FMLA leave required under the Act.

  1. Can I transfer employees to other jobs?

Yes. Just remember that if you reduce their pay significantly or change other significant aspects of their job, the employee can refuse the new position and be eligible for unemployment.

The most important thing to remember is to get up-to-date employment law advice before making any decisions about sick leave or termination of employees.

The job restoration requirement at the end of the FMLA leave has been relaxed somewhat for employers who have less than 25 employees, if the position no longer exists due to business changers that resulted from the effect of COVID-19 on the business. However, the employer must make reasonable efforts to restore the employee to a similar job, and if there is none, must contact the employee later if one becomes available.  The obligation to contact the employee continues for one year from the earlier of the date the public health emergency ends or the date the employee began their leave. (See Section 3102 (b), amending FMLA 29 U.S.C. 2611 et seq to add Section 110, Public Health Emergency Leave, amending Section 104(a)(1) Restoration to Position).

As of now, this expansion of the FMLA is in effect until December 31, 2020.

Regulations are supposed to come out this week that will hopefully provide more clarity.

The best practice for employers right now – particularly since changes in the law and regulations to be promulgated under it can occur rapidly –  is not to make any decisions about sick leave or other leave related to COVID-19 without contacting employment law counsel first.

Note that this Act does not affect sick leave or FMLA leave for any other reason separate from the current COVID-19 threat to public health.

Exclusions for Health Care workers and Emergency Responders

Both laws authorize the Secretary of Labor to provide certain exclusions for “health care workers and emergency responders,” but neither law defines those terms.

Until the regulations are released, it makes sense to review the definitions of “essential workers” in fighting the pandemic that has been compiled by the Department of Homeland Security. This list is available in the following Fortune Magazine article:

https://fortune.com/2020/03/20/essential-workers-government-list-employees-coronavirus/

Understand, however, that the DHS list is much broader than the terms “health care workers and emergency responders” noted in the Act, as it also includes agricultural workers, bank employees, and a number of other categories. However, it can be helpful to review who the DHS includes as “health care and public workers” in its definition, specifically: “Hospital and laboratory personnel, caregivers, mental health workers, doctors, nurses, researchers, pharmacists, dentists, social workers, technicians, as well as funeral home and cemetery workers.”  The DHS defines “law enforcement, public safety, and first responders” as: “Emergency management personnel, including police officers, firefighters, paramedics, and emergency medical technicians. The list also includes 911 call center workers and those who oversee emergency service operations” and has a separate category for “Other community-based government operations and essential functions,” which are defined as: “Elections personnel, building employees, security staff, trade officials, weather forecasters, customs workers, and educators.”

To be clear, no one would be excluded from taking leave if they are in fact quarantined because they have contracted COVID-19, but employees on the excluded list would be ineligible to take time off for childcare due to school closings.

I will update this information as soon as regulations are issued.

Tax Credits for Paid Sick and Paid Family and Medical Leave

Under Sections 7001 and 7003, of the Act, employers can take 100% credit against the tax imposed by Section 3111(a) or 3221(a) of the Internal Revenue Code for qualified sick leave or emergency FMLA leave paid to employees.

Sections 7002 and 7004 contain provisions for self-employed individuals to take credit against their taxes for qualified leave they would have been eligible for if they were employed by an employer instead of by themself.

Penalties for Noncompliance 

Under the Emergency Paid Sick Leave Act, an employer who discharges or otherwise retaliates against an employee for taking leave under the Act or filing a complaint about noncompliance under the Act, will be treated as if they failed to pay minimum wages under the Fair Labor Standards Act, and subject to liquidated damages (2 x amount owed) and other penalties imposed by the Department of Labor. (See Section 5101).

The penalties for noncompliance under the original FMLA also apply to this new expansion, with the exception that a business with less that 50 employees may not be subject to a civil lawsuit under Section 107(a) of the FMLA.  (I say ‘may’ because the language is not altogether clear on this point.)  Such businesses, however, would still be subject to enforcement action by the Department of Labor. (See Section 3014).

Other Considerations Regarding Federal Discrimination Laws

The EEOC has issued a new fact sheet (updated 3/19/20) describing actions employers may now take regarding job applicants and existing employees that would ordinarily be considered violations of the ADA, but are now deemed appropriate in the interests of public health.

These include additional health information you can obtain from an employee who calls in sick, taking the temperature of employees when they report to work, requiring that employees who exhibit symptoms stay home, issues involving requirement of doctors’ notes, screening job applicants for COVID-19, and withdrawing job offers.

The fact sheet is in a user-friendly format and is available here;  https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

FAQs 

  1. My business operations are slowing down and revenue is decreasing as a result of COVID-19. Can I lay off employees whose services are no longer needed?

Yes. You can still lay off an employee for normal business reasons, or due to changing needs of your business that result from COVID-19.  However, you cannot lay them off or otherwise terminate their employment because they request time off due to COVID-19 or because you anticipate they might request such time off.

For example, a restaurant that can now only provide take-out services does not need the same number of servers and table bussers. Those individuals can be laid off, and will be eligible for unemployment compensation.

  1. Is there any exemption for small businesses?

Yes, but it’s not been defined yet. The law provides that small businesses may apply to the Department of Labor for an exemption under certain circumstances (it appears to be an undue hardship standard), but the regulations governing this have not been issued yet.

  1. During the initial two-week period of the new FMLA leave, can the employee substitute their accrued paid sick leave, vacation leave, or other PTO instead of taking the Emergency Paid Sick Leave (which has a cap of $511 per day)?

Yes. Although the employer cannot require this, the employee can choose it.  For example, with higher compensated employees, their accrued leave may be higher per day than the emergency leave cap. This would be true of employees earning more than $63.87 per hour.

  1. How do I calculate the new FMLA paid leave if my employees worked a varied schedule with a different number of hours each week?

You average their weekly hours over the past 6 months.

  1. What if I want to pay my employees more or extend the paid leave longer?

You can do that, but as the law is currently written, you will only get the tax credit for paying within the prescribed caps.

  1. I have a part-time job working for an employer and I am also self-employed. If I receive the emergency paid sick leave or FMLA paid leave from my employer, can I also take a tax credit for days I was unable to work in my self-employed business?

As the law appears now, yes, you can do this, but you can’t “double-dip” – i.e. you can not take any credit which exceeds the daily caps. For example, under the $511 per day cap, if your part-time employer pays you $411 per day you could only take the tax credit for $100 per day from your self-employment business.

  1. I have less than 5 employees. Do these laws apply to me?

At present, yes, although regulations will be forthcoming that will allow small businesses to apply for an exemption if compliance would, as stated in the Act, “jeopardize the viability of the business as a going concern.”

  1. How does this new law affect salaried exempt employees?

This is not entirely clear. Under the Fair Labor Standards Act (FLSA), if an exempt employee works any part of a week, they must be paid their full salary for that week. The FLSA does provide, however, for absences to be deducted from a bona fide sick leave plan and, once those days/hours are exhausted, an exempt employee’s salary may be docked for full-day absences. However, under the Act, an employee cannot be required to exhaust their sick leave before using the emergency paid sick leave, which would indicate that the employer could not deduct a COVID-19 related absence from the exempt employee’s sick leave bank. My advice at this point, pending further clarification in the upcoming regulations, is to count the first 10 days of absence as protected under the Act and don’t deduct from the sick leave bank. If the exempt employee then goes out on FMLA, use any accrued sick leave in their bank to pay them at their regular salary level for those initial two weeks (or until their sick leave bank is exhausted). Then pay them in accordance with the Emergency Family Medical Leave Expansion Act.

Again, this advice may change as regulations are promulgated. Before dealing with this issue, consult your employment law attorney so you have most up-to-date information possible.

Also, remember, this is only for absences related to COVID-19 covered by the Act. Absences for any other reason should be treated under your customary policies.

  1. Can I require my employees to work from home?

Yes.

  1. What changes should I make in how my company does business?

First, consider whether it is possible to have employees work from home. If you do so, provide flexibility in schedules to enable employees to continue working productively even if they are dealing with childcare issues.  Having some flexibility could mean employees are able to effectively telework instead of going out on leave under the Act. This benefits both the company and the employee.  Do make sure, however, that employees working from home maintain accurate time records.

Second, for employees who are continuing to work in the office, establish policies to promote health. Provide soap in restrooms and encourage employees to wash their hands frequently. Send employees home if they are exhibiting symptoms. Have hand sanitizer (if you can find it) available, along with boxes of tissues. Limit outside vendors and other visitor access to the office. Wipe down door handles and office equipment. Do not hold in-person meetings in the office; have telephone conferences or video conferences instead. Ask your employees to maintain a 6 foot distance from each other. Ask your employees what other precautions they would suggest.

Third, consider whether you need to lay off or furlough employees. In many cases it’s better to take that action now, rather than deplete the company’s resources trying to stay in business when revenue is not being generated.  Being in a position later to reopen and recall your employees is better than struggle on until the business fails.

  1. What is the difference between laying off employees and furloughing them? What should I consider in making this choice?

In both instances, the employees will be eligible to receive unemployment compensation.

A lay off is a permanent termination of employment. The employment relationship is severed, although you certainly could rehire an employee at a later date.  If they were part of an employee group health insurance plan, the terminate then triggers their rights under COBRA.

A furlough is not permanent. It could be recurring (as in, employees are directed not to come to work every other week), or it could be for an indefinite period going forward (as in, don’t come back to work until we recall you).  A furloughed employee is still an employee of your business – it’s like being on an unpaid leave of absence. Check with your group health insurance provider regarding coverage during this time. Many health insurance plans have a minimum hours of work requirement for employees to remain eligible.

Remember, however, you cannot layoff or furlough an employee in lieu of providing the paid sick leave or paid FMLA leave required under the Act.

  1. Can I transfer employees to other jobs?

Yes. Just remember that if you reduce their pay significantly or change other significant aspects of their job, the employee can refuse the new position and be eligible for unemployment.

The most important thing to remember is to get up-to-date employment law advice before making any decisions about sick leave or termination of employees.

 Prepared by:
Phyllis J. Towzey, B.C.S.

Phyllis@towzey.com
Board Certified Specialist In Labor and Employment Law
Law Office Of Phyllis J. Towzey, P.A.
475 Central Ave., Suite 401
St. Petersburg, FL 33701
Phone: 727-895-1200
Fax: 727-892-9925
Website: www.towzey.com

GIG WORKERS OPINE ON UBER

GIG WORKERS, 11 MARCH 2018

 

What do freelance writers, IT consultants and Mary Kay sellers all have in common? They are each a part of what’s commonly referred to as the “gig economy,” which is comprised of nontraditional employees who typically don’t have a single, steady employer who guarantees regular hours and pay.

According to the latest Marketplace-Edison Research Poll, a quarter of American workers now participate in the gig economy, and they report significantly higher economic anxiety than regular full-time workers.

They worry more about not having enough money for basic necessities or to cover an emergency. They’re also less likely to say their gig work utilizes their skills, experience and education.

Long Island resident David Aria is a freelance audio engineer. He works “pretty much out of necessity. Unless you build your own studio, it’s really not going to pay the rent. Now I’m in a bit of a lull, I haven’t gotten any work, so I’ve been doing other stuff.”

Like dabbling in stocks.

“I would love to be financially stable,” Aria said. “I don’t particularly like the idea of freelancing as a sort of permanent solution. I’m a musician as well, I have my own goals, but I’ve had to put them aside. It’s like, I’m good at saving money, I’m not that great at making it yet.”

Harvard economist Lawrence Katz says a lot of people are finding it hard to make enough money in the new gig economy. Along with Princeton economist Alan Krueger, Katz has done seminal research on the rise of these alternative work arrangements–also sometimes referred to as “gig” or “contingent” work. Their 2015 research paper, based on a nationwide survey by RAND, found that between 2005-2015, the contingent workforce increased by about half–from 10.7 percent to 15.8 percent of all U.S. workers–and constituted approximately 95 percent of all net employment growth in the U.S. economy during that period.

According to Katz, without a steady employer, workers “get fewer benefits — things like workers’ compensation and unemployment insurance you’re not covered by. The hours are both lower on average, and the instability of earnings is much greater.”

That kind of instability hasn’t bothered carpenter Opis Harris much. He’s 58 and lives in Syracuse, New York. For decades he’s worked for himself and earned six figures in some years. Now he’s on disability and trains young carpenters for extra cash.

“I loved being my own man and I don’t have to be told what to do, and I could put in as much overtime as I want if I decided to stay there all night,” Harris said. “But then, with an employer, there’s a turn-on time and a shut-off time. But with me, I go as long as I want or as short as I want.”

Work flexibility is what the ride-hailing apps Uber and Lyft tout for their drivers, who are independent contractors and have to cover their own expenses, such as insurance, car repairs and gasoline.

Rebecca Smith, senior counsel at the National Employment Law Project, said that independent contracts are great for companies.

“They allow them to offload a substantial portion of risk and cost of doing business onto either a middleman — another company — or directly onto workers by themselves,” Smith said.

But for someone like John Franklin of Minneapolis, who owns his car — a Nissan Pathfinder — paying those costs in order to drive for Uber can make financial sense.

Franklin makes a good living as an independent marketing consultant. But he wanted another gig for his down time, and some extra cash. He has considered bartending, but because of his unsteady schedule, he also considered driving for Uber.

“I can just go on where and when I want,” Franklin said.

Our survey finds that gig workers highly value setting their own schedule and being their own boss.

ME TOO MOVEMENT BASED IN LITIGATION

26 DECEMBER 2017

By Catherine A. MacKinnon

Women’s voices recounting sexual abuse being heard, believed, and acted on is a real change.

The accountability for sexual harassment seen today, termed “voluntary compliance” in the discrimination field, has been driven primarily by mainstream and social media, not by litigation. But make no mistake. If sexual harassment had not been recognized as a legal claim for sex discrimination decades ago, powerful, prominent men would not be losing their lucrative jobs, political and academic positions, deals and reputations.

Transforming a privilege of power into a disgrace so despicable that not even many white upper-class men feel they can afford to be associated with it took decades of risk, punishment and work, including legal work.

It was legal recognition that broke the rule of impunity that the more power a man has, the more sex he can exact from those with less power. Destroying the legitimacy of what women previously just had to live through required effective legal intervention based on recognition of the reality that this practice of inequality is sexual and gender-based.

Despite the inadequacies of the legal system, this breakthrough was a precondition for this moment of cultural transformation. And the moralistic conflation of the inappropriate sex of “sex scandals” with reports of sexual exploitation and predatory molestation is at last being disentangled.

Most importantly, I suspect that a lot of the sexual harassment that has been a constant condition of women’s lives since forever is not happening just now.

We created the #MeToo movement. Now it’s time for #HerToo
Tarana Burke and Alyssa Milano
Read more
It is something of a miracle when anyone claiming sexual violation is believed, even if it takes multiple accusers. But the odds of being believed are irrelevantly improved by any kind of privilege – be it race, ethnicity, religion, class, celebrity status, nationality, caste, sexuality, age, gender, or combinations of these.

The prominence of the harasser stokes media interest, too, although anyone who sexually harasses women is plenty big to his targets. As stunning as the revelations have been to those who failed to face the long-known real numbers, the structural and systemic underbelly of this dynamic has only begun to be revealed. Sexual harassment, as I wrote in 1979, is “less ‘epidemic’ than endemic”.

A lot of women’s work, like the rest of women’s lives, is sexualized. Working for tips in a restaurant to make anything close to a living wage, for example, largely requires women in effect to sell themselves sexually. The entertainment industry commodifies the sexuality of the women in it. The fact that so many of the exposed harassers in the entertainment field subjected their victims to a pornographic spectator sexuality, masturbating over them in real life like consumers do over women in pornography, is no coincidence. Pervasively normalized, this is what an endemic abuse looks like.

#MeToo named the victims. Now, let’s list the perpetrators
Jessica Valenti
Jessica Valenti Read more
In its fundamental dynamics, sexual harassment turns real work into a form of prostitution. The imperative to exchange sex for survival, or its possibility whether real or not, rules women’s inequality, hence women’s lives, worldwide. In prostitution, virtually all of women’s and girls’ options are precluded except for this one, making her consent to it, or choice of it, fraudulent and illusory.

Women who supposedly have human rights, including equality rights in employment and education, are reduced to this same floor of women’s status when tolerance of sexual harassment, or sexual delivery in any form from objectification to rape, becomes a requirement in the paid labor force (including in paid housework, where it is widespread) or in educational or career advancement. As one prostituted female colleague once observed to me, “… and you have to do all that other work, too”. This is what is being widely rejected today.

If requiring sexual use as the price of survival is a human rights violation when combined with a real job or other entitlement, it certainly violates human rights when it is the only thing a woman is valued for. Yet it is not effectively illegal to buy a person for sexual use in most places.

When will we see near unanimity of revulsion and rejection when sexual harassment’s dynamic in its pure form – prostitution – is exposed? Or will those who report it – women and girls, men and boys, transgender persons – continue to be stigmatized, shamed, blamed, their violators defended? When will the men who outright buy others for sexual use be unmasked, rejected and penalized as the predators they are? That will be the transformation this one prepared.

Meantime, many social sectors are recognizing their obligation to foster environments free from sexual objectification, pressure or aggression, in which reporting of sexual abuse is welcomed rather than punished, accountability not impunity prevails for individuals or institutions that engage in or enable such abuse, and excellence and inclusion rather than hierarchy and fear actually operate as standards.

Real equality, finally, could begin here.

Catharine A MacKinnon, who conceived sexual harassment as sex discrimination in the mid-1970s and participated in its legal recognition, teaches law at the University of Michigan and Harvard Law School

RUBY TUESDAY TO PAY $45,000TO SETTLE EEOC AGE DISCRIMINATION SUIT

WASH. DC, OCT 26: EEOC WINS RULING FOR $45K FROM RUBY TUESDAY

Boca Raton Restaurant Refused to Hire an Older Applicant Because It Wanted to ‘Maximize Longevity,’ Federal Agency Charged

FORT LAUDERDALE, Fla. – Ruby Tuesday, Inc., a Georgia corporation doing business in South Florida, will pay $45,000 to settle an age discrimination lawsuit filed by the U.S. Equal Emp-loyment Opportunity Commission (EEOC), the agency announced today.

The EEOC charged that Ruby Tuesday violated federal law when it declined to hire Floyd Cardwell, a qualified applicant with over 20 years of experience in the food and beverage industry, for a general manager position at its Boca Raton restaurant. In response to an inquiry by the applicant as to why Ruby Tuesday declined to hire him, the company informed him it was seeking a candidate who could “maximize longevity.”

 Age discrimination violates the Age Discrimination in Employment Act (ADEA). The EEOC filed suit against Ruby Tuesday, Inc. in U.S. District Court for the Southern District of Florida, Fort Lauderdale Division (EEOC v. Ruby Tuesday, Inc., No. 0:17-cv-60970-BB) after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the $45,000 in monetary relief to Cardwell, the three-year consent decree resolving the suit requires Ruby Tuesday to identify a Diversity Director to manage the decree’s provisions re-quiring the reports of age discrimination complaints, nationwide oversight of the corporation’s age-friendly recruiting and hiring efforts, the education of its employees on an updated ADEA policy, and ADEA training for its hiring management team.

“The ADEA will mark its 50th Anniversary in December of this year,” said Michael Farrell, director of the EEOC’s Miami District Office. “At this stage in our nation’s history, employers should be well aware that discrimination against qualified job applicants because of their age is a violation of federal law. Employers must remain vigilant in their efforts to make hiring decisions based on quali-fications and not myths, fears or stereotypes associated with applicants over 40.”

Robert Weisberg, regional attorney for the Miami District Office, added, “Ruby Tuesday listened to the agency’s concerns and participated in a resolution that seeks to ensure a work environment inclusive of older workers.”

One of the six priorities in the EEOC’s Strategic Enforcement Plan for 2017-2021 is to eliminate barriers in recruitment and hiring.

The Miami District Office’s jurisdiction includes Florida, Puerto Rico and the U.S. Virgin Islands.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

#

Political Activity and Employment Law

FROM AP, 19 AUGUST 2017

Steve Helber / AP
Federal employment law doesn’t ban discrimination based on political affiliation. A minority of states ban discrimination based on political activity:

Some states ban firing based on “political activity,” including California, Colorado, Louisiana, Minnesota, Missouri, Nebraska, Nevada, South Carolina, Utah, and West Virginia. Seattle and Madison fall in this list, too.
Montana also bans firing absent good cause, which would protect political activity.
New Mexico bans firing based on “political opinions.”

Statutes protect belonging to a political party in D.C., Iowa, Puerto Rico, and the Virgin Islands. This also includes Broward County (Fl.) and Urbana (Il.).

Colorado and North Dakota ban firing based on off-duty lawful activity (including speech), while Connecticut protects employees from retaliation for speech broadly.

Illinois, New York, and Washington have laws that apply to election-related activities.
Hawaii, Idaho, Kentucky, Tennessee, West Virginia, Wyoming, and Guam ban retaliation for petitions or voting.
The Washington Post’s Eugene Volokh did a deep dive on this topic, looking at political speech rights and where you can get fired for it.

Why it matters: “The First Amendment applies only to government employers; it doesn’t apply to nongovernmental entities (whether or not those entities have government funding or contracts),” per Volokh.

What it means: If someone is fired on these grounds, these laws would all “likely authorize civil lawsuits,” Volokh writes. And the First Amendment keeps all of this in the balance since it is possible it would preempt any claims that political speech creates a hostile work environment, protecting the person who participated in political speech.

Caveat: Most employment is “at-will,” meaning an employer can fire an employee for whatever reason, so long as it is forbidden by a statute.

not those entities have government funding or contracts),” per Volokh.

What it means: If someone is fired on these grounds, these laws would all “likely authorize civil lawsuits,” Volokh writes. And the First Amendment keeps all of this in the balance since it is possible it would preempt any claims that political speech creates a hostile work environment, protecting the person who participated in political speech.

Caveat: Most employment is “at-will,” meaning an employer can fire an employee for whatever reason, so long as it is forbidden by a statute.

 

IS A $15 AN HOUR WAGE GOOD OR BAD?


FROM HUFFINGTON POST,  JUNE 29, 2017

In an otherwise bleak landscape for progressive policy, the Fight for $15 has been one of a very few rays of light. Since the day in 2012 when 200 fast food workers in New York City walked out on strike, calling for $15 an hour and the right to join a union, cities and states across the country have raised their minimum wages, and several large private employers have increased pay for their low-wage workers. The National Employment Law Project estimated that as of last year, America’s lowest paid workers had won $62 billion in raises in conjunction with the Fight for $15’s demands.

Seattle is among the leaders in hiking its minimum wage, raising wages in a series of steps based on how many people a business employs, whether workers receive tips, and whether the employer contributes to workers’ health coverage. By the end of 2016, large Seattle employers who did not pay for insurance were required to pay workers a minimum of $13 an hour.

In a careful analysis of food service jobs in Seattle during the period of wage increases, researchers at the University of California Berkeley found that the wage hike succeeded in raising incomes for low-paid workers without impacting the number of jobs. These findings are in line with the bulk of research on the effects of raising minimum wages.

Yet there are powerful interests with a stake in halting the Fight for $15 movement in its tracks and continuing to pay rock-bottom wages. They are trumpeting a different studyreleased this week by researchers at the University of Washington. This research suffers from serious methodological flaws, yet purports to show, in the words of Fox News, that “Seattle’s first-in-the-nation $15 per hour minimum wage law is hurting the workers it aimed to help.”

The reality is that wages have stagnated over the past 4 decades for the vast majority of Americans, and inequality has skyrocketed. Raising the minimum wage is a proven and effective means to put more money in the pockets of working people and begin to close the gap. The Fight for $15’s other central demand—for employers to recognize workers’ right to join a union and bargain collectively—would lift up an even broader range of working Americans, but has been even harder to achieve politically.

It’s no surprise that the Fight for $15 has generated a substantial backlash, nor is it the first time that a poorly conducted study produced findings convenient to corporations and other low-wage employers. Seattle’s economy is booming. Thanks to the minimum wage hike, workers at the bottom of the labor market are able to share in a bit more of the gains.

SUPREME COURT SEES JUSTICE DEPT OPPOSE NLRB

FROM SCOTUS BLOG, 19 JUNE 2017

Murphy Oil’s law: Solicitor General’s office reverses course in arbitration cases, supports employers
It is rare for the Office of the Solicitor General to change its position in a case before the Supreme Court after a change in administrations, even when the party in control of the White House changes. But that is exactly what happened last week, when the Trump administration weighed in on an important arbitration case: The office urged the justices to affirm the same decision that, on behalf of the National Labor Relations Board, it had previously asked them to review and overturn.

The about-face came in National Labor Relations Board v. Murphy Oil USA, in which the justices have agreed to decide whether agreements to forgo class actions or collective proceedings and instead resolve employer-employee disputes through individual arbitration are enforceable under the Federal Arbitration Act. In its petition for review on behalf of the NLRB, filed in September 2016, the Solicitor General’s office had argued that such agreements are not, because the National Labor Relations Act protects employees’ ability to engage in joint actions regarding the terms or conditions of their employment. On January 13, 2017, just seven days before the inauguration of President Donald Trump, the Supreme Court granted the NLRB’s petition, along with two others filed by employers (Ernst & Young LLP v. Morris and Epic Systems v. Lewis), and consolidated the three cases for one hour of oral argument.

Under the briefing schedule ordered in the case, the employers in all three cases filed their briefs on June 9, with briefs from the employees and the NLRB to follow on August 9. But on Friday (the deadline under the court’s rules to do so), the United States filed a “friend of the court” brief supporting the employers. The petition for review had been signed by seven lawyers from the NLRB, including its general counsel. Those NLRB lawyers were conspicuously absent from Friday’s brief, which was signed only by lawyers from the Solicitor General’s office. Acting Solicitor General Jeffrey Wall acknowledged that his office had previously filed a petition on behalf of the NLRB, “defending the Board’s view that agreements of the sort at issue here are unenforceable.” But, Wall continued, “since the change in administration, the Office reconsidered the issue and has reached the opposite conclusion.” In particular, Wall explained, the NLRB had not given “adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the” Federal Arbitration Act.

In a press release published on the NLRB’s website, the NLRB indicated that Wall had authorized it to represent itself in the Supreme Court proceedings in this case, and nothing in the brief of the United States suggests that the NLRB has changed its position. This means that the NLRB is likely to file its own brief, reiterating its original position in the case, in early August. And if the United States seeks and receives permission to argue in the case, as it virtually always does in cases in which it files “friend of the court” briefs, a lawyer for the United States would argue against a lawyer for a U.S. agency – a phenomenon perhaps even more uncommon than a change in position following a change in administration.

EEOC MAY TARGET UNIVERSITIES FOR DISCRIMINATION

FROM REALCLEAR EDUCATION, 16 JUNE 2017

America’s colleges and universities are, with good reason, under attack for promoting an expensive postsecondary education “bundle” that is increasingly unmoored from the demands of the workforce.  Bipartisan legislation introduced by Senators Bennet and Rubio now aims to bust the accreditation cartel. But like the music and television industries, entrenched colleges and universities have, to date, fought the unbundling of a lucrative $500 billion revenue stream.

For the most part, progressives continue to defend the current system, with free college now core to Democratic Party orthodoxy. But in an ironic twist, the unbundling of higher education may be fueled less by private-sector pressure and would-be disruptors than by decades of progressive policies.

Since the Civil Rights Act of 1964, employers have been prohibited from engaging in “different rates” of hiring or promotion based on race, sex, or origin. Employment policies themselves need not be discriminatory; judges consider whether hiring practices have an adverse impact. Practices are deemed illegal if they result in a deviation of 20% or more, in relation to the advantaged group.

Each year, the Equal Employment Opportunity Commission sends tens of thousands of letters to employers charging them with adverse impact discrimination. Many result from complaints about background checks or assessments that may have an adverse impact on the hiring process. None, however, address college degree requirements, despite the fact that such requirements are increasingly common – including for jobs that may not have required them in the past. According to one estimate, although 65% of executive assistant positions now require bachelor degrees, less than 20% of current EAs have a degree. Across all sectors, similar “credential gaps” range from 10-40%.

On their face, college degree requirements invariably fail the 20% deviation adverse impact test: 42.9% of whites ages 25-29 have bachelor’s degrees compared with just 22.7% of African-American and 18.7% of Hispanics. So one would think college degree requirements in job descriptions would be ripe for EEOC action. According to Associate Dean Charles Sullivan, an employment law expert at Seton Hall Law School, “Remarkably, the answer is almost never. No one is interested in upsetting this apple cart.”

When an enterprising lawyer – or state’s attorney general – finally decides to bring such a case, employers will attempt to show that the ratios of new hires to applicants don’t diverge by more than 20% for any group. That’s true, but only because college degree requirements keep candidates without degrees from applying to good jobs. Proving adverse impact of college degree requirements will require the demonstration that employment policies actually keep qualified candidates from applying. According to Sullivan, “such a case will require experts to prove the statistical case. But it can be done.”

Employers will, in turn, argue that degree requirements are “job-related” and “consistent with business necessity.” One of the few cases on the topic, for example, found that a library’s requirement that applicants possess a Master’s degree in library science was appropriate. Although such an argument may have merit in the case of specialized and graduate degrees, recent data suggests that technical skills now outnumber all other skills in job descriptions across nearly all industries. At a time when university coursework hasn’t kept pace with the rapidly evolving technical demands of our modern workforce, it seems less and less likely that pervasive college degree requirements will withstand legal scrutiny.

As a final defense, employers may argue that they lack capacity to filter candidates in the absence of the objective degree requirement. But this fails to ring true when tens of thousands of American job-seekers are availing themselves of bootcamps and other degree alternatives. LinkedIn Learning recently reported that project management certifications are on the rise, resulting in as much as a 20% salary bump for the so-called “poor man’s MBA.” As an array of microcredentials and digital portfolios signal candidate competencies and Applicant Tracking Systems sort candidates using an array of criteria, alternative hiring measures abound.

And so American employers, committed to using the degree as a crude hiring filter, will be left with “convention” as last defense – a notably unsuccessful argument in anti-discrimination law.

When a case challenging rampant college degree requirements is finally brought – and won – it will not only be a civil rights victory, it will also propel the ‘Great Unbundling’ of American higher education – a major victory for champions of economic mobility and economic growth as more Americans are considered for employment according to their capabilities rather than their pedigrees.

DOL MOVES A RULE THAT COULD FAVOR FRANCHISORS

FROM THE ORLANDO SENTINEL, JUNE 8

Fanchise companies, including many restaurants in the Orlando area, are applauding a move by the Trump Administration’s Department of Labor on Wednesday that could reduce lawsuits against franchisors.

It could also mean less money for employees or customers who sue franchise businesses.

Franchise companies, such as McDonald’s Corp., faced more pressure regarding problems including workplace discrimination or injury in recent years. Under the Obama Administration, the labor department issued guidance that viewed such companies as “joint employers” with their franchise locations.

Wednesday’s labor announcement was terse, just three sentences. It reverses attempts by the department under the Obama Administration to attach greater liability to franchisors or contractors, referred to as joint employers.

The department announced “the withdrawal of the U.S. Department of Labor’s 2015 and 2016 informal guidance on joint employment and independent contractors.”

“It is a favorable thing that the franchise industry would be happy to hear,” said Biff Godfrey, an Orlando attorney who previously served as general counsel for TGI Fridays restaurant chain.

Franchises like TGI Fridays are typically owned and operated by small, local businesses. There can be some exceptions to that situation, including if a franchisee owns dozens of locations. But suing a large corporation like McDonald’s is a much more wealthy target.

“It’s an attempt to reach into the deep pocket of the franchisor, rather than the company you actually work for,” Godfrey said. “That concept could potentially end the whole franchise business model.”

He said franchise companies offer basic advice to franchisees about the need to have policies addressing discrimination, harassment and other problems. But the big corporations generally don’t get involved in telling the smaller operators what they should do about such issues.

The news release from the Labor Department said it would continue enforcing the law, though: “Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction …”

CHIPOTLE IN MAY BE IN CLASS ACTION OVERTIME SUIT

FROM USA TODAY, JUNE 7

A lawsuit seeking class-action status was filed against Chipotle Mexican Grill alleging the fast-food chain failed to adequately compensate some employees for overtime work under a federal rule that went into effect late last year.

The lawsuit, filed this week in U.S. District Court in New Jersey, alleges the company failed to pay overtime to employees under the new overtime rule issued by the Labor Department last year — and that it’s not the only one. Joseph Sellers, a partner at Cohen Milstein Sellers & Toll, who represents the plaintiffs, said the issue may apply to other companies as well.

“For conscientious employers, a suit like this reminds them that the rule is in effect and that they should be paying overtime,” Sellers said. “I don’t fully understand the mind-set that has given rise to this broad belief that companies are not bound by this.”

At the core of the suit is the rule that made more employees eligible for overtime pay. It required employers to pay overtime to any worker who earned up to $47,476. Previously, the companies only had to pay overtime to workers making $23,660 or less. But in late November, shortly before the rule went into effect Dec. 1, a Texas court put enforcement of it on hold so employers didn’t have to pay overtime to workers who had the higher salary threshold. The lawsuit says Chipotle should be required to continue to pay overtime despite the injunction of enforcement of the rule by the Texas court. It contends the Texas injunction did not apply to private employers and the overtime rule would stay in effect until the court issues its final ruling.

The lead plaintiff is a worker named Carmen Alvarez, who was training to become a general manager at a Chipotle restaurant, known as an “apprentice” within the chain. She was working about 10 overtime hours a week and was earning a total of about $43,082 a year, but was denied overtime pay when the injunction was issued.

Chris Arnold, a spokesperson for Chipotle, said the company doesn’t discuss pending legal actions. He added, however, that Chipotle’s employment practices are compliant with applicable laws and specified that “a lawsuit is nothing more than allegations, and the filing of a suit is in no way proof of any wrongdoing.”

Tim Trujillo, a human resources consultant who founded Focus HR in Tehachapi, Calif., said even if the lawsuit was to win in court, it might not be around for much longer if the Trump administration chooses to roll back the rule.

The Labor Department “will probably be reviewing and deciding whether they want to go forward with the same regulations” that came during the Obama administration, Trujillo said.