The champagne was still flowing in the Alabama locker room on Monday night following their thumping of Ohio State in the College Football National Championship Game when sports media outlets began to publish their “Way Too Early” Top 25 polls for next season. It is a stark reminder that it is never too soon to look ahead. As the country gets set to swear in a new president next week, it is the perfect time to make some “pre-season” predictions about the changes the incoming administration might make to the labor and employment landscape.
On January 1, Section 448.095 of the Florida Statutes took effect. Much of the attention on the new statute has focused on the requirement that public employers and contractors and subcontractors enroll in and use the federal government’s E-Verify system. However, the statute also imposes an obligation on private employers that goes beyond the federal regulations governing the Form I-9 process.
The E-Verify Requirement
Beginning January 1, 2021, every public employer, contractor, and subcontractor must register with and use E-Verify to verify the work authorization of all newly hired employees. A contractor is a person or entity that has entered into or is attempting to enter into a contract with a public employer to provide labor, supplies, or services to the public employer in exchange for salary, wages, or other remuneration. A public employer includes any state, regional, county, local or municipal government, public school, community college, or state university.
The Statute’s Impact on Private Employers
Beginning January 1, 2021, private employers must verify the employment authorization of any newly hired employee. The private employer must verify employment eligibility either (1) using the E-Verify system or (2) requiring the person to provide the same documentation required by the Form I-9 process and retain a copy of the documentation for three years.
The Families First Coronavirus Response Act (“FFCRA”) became federal law on April 1, 2020. (For a detailed discussion on FFCRA coverage see our blog post dated March 20, 2020). The FFCRA was the first federal legislation mandating nationwide paid leave for employees. Unlike many other federal employment laws, the FFCRA contained a “use by” date of December 31, 2020. So, after tomorrow, it expires.
The most recent Congressional action failed to extend either the FFCRA’s Emergency Paid Sick Leave and Emergency Family and Medical Leave Act provisions into the New Year. Instead, Congress greenlit those covered employers who wish to voluntarily continue to provide FFCRA paid sick leave with a tax credit incentive up to March 31, 2021. If there are any lingering issues, the U.S. Department of Labor is expected to give additional guidance.
However, private employers may need to consider whether to continue to provide paid time off to sick employees, those seeking testing, caring for other family members or those testing positive for COVID-19 even beyond tomorrow in light of the continuing COVID crisis. Does any employer really want infected employees returning to work prematurely because they cannot afford to stay home? Or employees leaving minor children alone at home because of a school closure?
Even as they say “auf weidersehen” to the FFCRA, Florida employers need to remember that employees are still entitled to unpaid traditional FMLA leave if they are sick with COVID (and meets the test for a serious health condition) or are caring for a covered family member with a serious health condition.
But wait, that’s not the end of the story. The FFCRA will continue to be a zombie law, since it allows employees to file suit up to two years after the alleged violation of the FFCRA and for willful violations of the FFCRA for up to three years afterwards.
As we look to 2021, now that the U.S. has dipped its toes into paid leave, query whether Congress and the Biden administration will revisit the need for paid leave for those who need to care for themselves or covered family members as the pandemic continues or for other health-related reasons after the present crisis ends.
Finally, there is a light at the end of this tunnel. COVID-19 vaccines have been approved for use and are currently being shipped nationwide.
COVID-19 vaccinations are a polarizing topic. Well-regarded medical professionals report that the vaccines are between 94-95% effective, have minimal side effects (which do not include getting the virus) and represent our best chance at getting back to normal. Despite this, it is predicted that between 30 and 50% of Americans would decline to take a COVID-19 vaccine, even if free, based on concerns about side effects, the development process, and the effectiveness of the vaccine.
While it is still not clear when everyone will have access, it’s not too soon for employers to start planning. As the vaccines become available, employers have one simple question “Can we require our employees to get vaccinated?”
In true lawyer fashion, the answer is “yes, but…”
On December 9, the Department of Homeland Security (DHS) again extended Temporary Protected Status (TPS) for beneficiaries from El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal. DHS also extended the work authorization of qualifying individuals through October 4, 2021.
The first time I heard the term “sex addiction” was in 2010, when Tiger Woods announced to the public that he would be stepping away from the PGA Tour to attend rehab. The announcement shook the sports world and sparked a conversation about an addiction that seemed to only happen in Hollywood.
Since then, the term “sex addiction” and its diagnosis have gained some scientific and public recognition, and this week, the condition was used as the basis for an ex-employee’s disability discrimination claim.
Pre-COVID, employees could pop into the office supply closet for the ream of paper they needed to print that 50-page report, or the box of staples, pens and pack of tabs to refill their dwindling supply. Now, they may be buying office supplies as they work from home. In order to reduce the risk of potential wage and hour claims, and ensure that costs do not spiral out of control, employers will need to develop remote work purchasing and reimbursement policies.
I’m sure you’ve been reading enough about COVID or how a Biden administration might swing the workplace pendulum back towards employees and unions (I think it’s a good bet), so let’s focus on the Fair Labor Standards Act (FLSA) for now. Can you imagine a time when employees will have to travel again for work? Well, strap on your seat belts because, on November 3, 2020, the U.S. Department of Labor issued an opinion letter on compensating travel time!
Here’s the breakdown.
As many of you know, I have a crystal ball on my desk. This past August, I was asked to predict Florida’s minimum wage increase starting in January 2021. The crystal ball revealed that Florida would experience either an 8¢ or 9¢ increase from its current $8.56 minimum wage. Late last month, Florida announced a 9¢ increase.
The crystal ball was on the “money”. So what does this increase mean for Florida employers?
The U.S. Department of Labor (“DOL”) recently posted a proposed rule meant to help employers determine whether individuals performing services are employees or independent contractors for purposes of federal wage and hour laws. Misclassifying an employee as an independent contractor is risky and exposes an employer to potential expensive lawsuits, including for unpaid minimum wages and overtime, liquidated (or double) damages, civil monetary penalties, costs and fees, and, in some instances, criminal penalties. In addition, classification errors can lead to employment tax claims and penalties. Employers want more clarity and the DOL is trying to do just that.