CARES Act – Paycheck Protection Program

The Coronavirus Aid, Relief, and Economic Security Act or the “CARES Act” became law on March 27, 2020. The CARES Act was passed in an effort to help small businesses continue operations and retain workers as the country meets the challenge of curbing the devastation of COVID-19 and the resulting impact such efforts have had, and will continue to have, on the economy. The CARES Act is an extensive piece of legislation. This post will focus on providing a summary of the main provisions related to the Paycheck Protection Program available to businesses with less than 500 employees. What is the Paycheck Protection Program? The Paycheck Protection Program (PPP) allows the Small Business Administration (SBA) to administer and work with lenders to provide forgivable loans to small businesses through June 30, 2020, to be used by borrowers for certain permissible purposes related to payroll costs and certain necessary business expenses. Who qualifies for the Paycheck Protection Program? To qualify for the Paycheck Protection Loan, the borrower must be: 1. A businesses with not more than 500 employees; Includes, individuals who … Continue reading

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Families First Coronavirus Response Act (H.R. 6201) Signed Into Law

Yesterday, the Families First Coronavirus Response Act (H.R. 6201) was passed into law and goes into effect on April 1, 2020, and stays in effect until December 31, 2020. If you are an employer with less than 500 employees, please read because this will apply to you. Employers, check out our COVID-19 Resource Guide. The Act: requires private insurance plans to provide free COVID-19 testing; requires employers to provide emergency paid sick leave to workers affected by COVID-19 and expands family and medical leave; and provides increased funding for state unemployment insurance programs, food stamp and nutritional programs and others. This post will focus on the emergency family and medical leave and emergency sick leave aspects of the Act, which will affect the vast majority of employers and employees across the country. There are two provisions providing paid leave to employees forced to miss work because of the COVID-19 outbreak: an emergency expansion of the Family Medical Leave Act (FMLA) and a new federal paid sick leave law. Emergency Family and Medical Leave Expansion Act FMLA Coverage is Expanded to Include Most Employers – The Act … Continue reading

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Employee Arbitration Agreements No Longer OK Under New Law?

Updated 1/3/20: A federal court issued a temporary restraining order stopping the implementation of AB51. That law makes it illegal for employers to make it mandatory for employees to enter into arbitration agreements. A new law in California attacks employee arbitration agreements and prohibits anyone from requiring an applicant for employment or any employee to waive their right to sue for a violation of any provision of the Fair Employment and Housing Act “FEHA” (California’s anti-discrimination laws) as a condition of employment, continued employment, or receipt of any employment-related benefit. These waivers usually exist in an arbitration agreement. Employers also can not retaliate, discriminate against, or terminate someone’s employment for refusing to sign an arbitration agreement. The new law applies to contracts signed after January 1, 2020. However, it specifically does not apply to arbitration agreements that are valid under the Federal Arbitration Act, negotiated severance agreements, or post-dispute settlement agreements. Practical Tip: There will be plenty of litigation on this new law, but until we have the courts’ interpretations of the new prohibitions, what should employers do? 1) If you don’t have an arbitration agreement, or aren’t quite sure what one is, you should still have one. 2) If you have an arbitration agreement, have it reviewed by counsel before you … Continue reading

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AB5 – New Independent Contractor Law

Watch my FREE AB5 WEBINAR on-demand to learn about “AB5 and the ABC Test for independent contractors.” What You Will Learn In this AB5 webinar you will learn about: The new ABC test for independent contractors. Which professions/categories of workers are exempt from the ABC test. How to keep those excepted categories independent contractors. Consequences for misclassifying workers, including individual liability. What you can do to minimize exposure. Did You Get a Letter from the EDD? California companies received a letter from the EDD about AB5 (Assembly Bill 5) and the ABC test in Dynamex v. Superior Court. Many business owners are hearing about the expansion of the new independent contractor test for the first time just days before the law went into for the New Year on January 1, 2020. Are you trying to wrap your head around the new AB5 rules and asking the following questions? Do I have to convert independent contractors to employees? Can I keep independent contractors as contractors? How do I keep independent contractors a contractors? What are the risks of misclassifying independent contractors? Background AB 5 was the big bill to watch this year. … Continue reading

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Accommodating Employee with Anxiety

About 40 million American adults or approximately 18% of the population suffers from an anxiety disorder according to the Anxiety and Depression Association of America. This makes anxiety disorders the most common mental illness in the United States. Excessive anxiety can interfere with daily activities such as job performance, school work, and relationships, at a certain level, it could meet the definition of a disability under the Fair Employment and Housing Act (FEHA). Since almost 1 in 5 adults suffers from an anxiety disorder, it is likely that an employer with five or more employees (and therefore subject to FEHA) will have an employee who suffers from an anxiety disorder.  What is an employer’s obligation if it learns that an employee suffers from anxiety and it’s affecting the employee’s ability to work?  Assuming that an employee suffers from severe or chronic disorder that interferes with their activities of daily living (not merely the occasional anxiety that we may feel when faced with uncertainty, a micro-manager, or the like), below are some basic steps an employer should follow. Remember the objective. … Continue reading

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Race Discrimination Includes Hair Discrimination

The Governor of California approved SB 188, known as the CROWN Act, in July 2019 to amend anti-discrimination laws in the areas of education, employment, and housing. Hair As a Proxy for Race In the employment context, the bill noted that in U.S. society, hair has historically been one of many determining factors of a person’s race and that hair today remains a proxy for race. Workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks, have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees than any other group. Thus, hair discrimination targeting hairstyles associated with race is racial discrimination. California’s Anti-Discrimination Law To review, under the California Fair Employment and Housing Act (FEHA), it is unlawful to engage in specified discriminatory employment practices, including hiring, promotion, and termination based on certain protected characteristics, including race, unless based on a bona fide occupational qualification or applicable security regulations. FEHA also prohibits housing discrimination based on specified personal characteristics, including race. … Continue reading

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Employee Pay: On-Call Shifts and Reporting Time Pay

Putting employees on-call or requiring them to call in before shifts could raise employee pay issues.  Businesses that experience fluctuations in foot traffic, calls, or demand, face the difficulty of predicting employee schedules. Since needs change quickly, it could be difficult to anticipate how many employees the business needs on any given day or part of the day. Many businesses choose to address this difficulty by scheduling employees for on-call shifts to ensure that there are workers on stand-by who are ready to step in on short notice if the need arises.  Depending on your business’s particular rules and practices related to these on-call shifts, you may have employee pay violations if on-call employees are not paid “reporting time” pay. A California Court of Appeal in the case of Ward v. Tilly’s, Inc., addressed the question of what it means to “report to work” for purposes of determining whether the employee is owed “reporting time pay” under the wage order (Wage Order 7 that governs the mercantile industry in this case). In that case, Tilly’s scheduled its employees for a … Continue reading

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2018 Holiday Party Checklist

We’re in the last month of 2018, which may feel like mayhem for many business owners.  It’s a difficult time. There are fewer work days, yet the client and customer deadlines remain; you’re evaluating employees and business year-end goals; you’re finalizing 2019 goals and strategies to meet those goals; and then there are the parties.  There are parties you’re attending and the one you’re putting together for your employees. As you recognize (that’s why you’re throwing one) holiday parties are valuable. According to the Center for Management & Organization Effectiveness, a holiday office party could improve company culture in the following ways: It represents the preferred company culture in a light way; It unites office subcultures; It provides opportunities for recognition; It gives a morale boost; and It allows employees to interact with executives and upper management. But as a business owner, you walk a tightrope.  You’re worried about putting on an office holiday party that is enjoyable for employees and positively contributes to the company culture on the one hand and making sure that things don’t get out of … Continue reading

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Arbitration Agreements and Class Action Waivers Post-Epic Systems

When business owners call my office looking for guidance because their accountant, fellow business owners, colleagues, or friends told them they should talk to an employment lawyer about their fears and concerns surrounding an employee issue, I ask a series of questions to get a better understanding of what is going on in the business.  One of the questions I ask is: Do you have an arbitration agreement?   9 out of 10 times there is a pause and a response that ranges from “can you tell me what that is” and “I’m not sure.” It’s understandable because unless you’re a doctor’s office, arbitration agreements aren’t part of your everyday life.  However, these businesses are missing out on a great tool that could be used in their favor if they value privacy, expediency, and cost-savings should a dispute arise with an employee.  Especially given the Supreme Court’s decision in Epic Systems Corp. v. Lewis.  Below is an article I wrote on the decision that was recently published in the Orange County Lawyer’s Magazine.  Although aimed at attorneys, it gives employers a better … Continue reading

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New Independent Contractor Test: 3 Clarifications from the Court of Appeal

If your business uses independent contractors at all, you have probably heard about Dynamex Operations West, Inc. v. Superior Court and the new “ABC Test” to analyze whether a worker is an employee or an independent contractor. You were probably worried about whether your independent contractors pass the ABC Test. You are justified in worrying because the new test makes it much more difficult for someone to be classified as an independent contractor. This then opens the door for claims of misclassification, for missed meal break and rest break penalties, and unpaid overtime because that’s what you paid your hourly workers but not your independent contractors. Your business may be sitting on a 5 to 6-figure time bomb.   ABC Test Recap If you have not heard about Dynamex or the ABC Test, or if you need a recap, here it is. Under this new independent contractor test, a worker is properly considered an independent contractor to whom the applicable wage order does not apply if the hiring entity establishes all of the following: (A) that the worker is free … Continue reading

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