Tag Archives: employment law attorney

FFCRA Opt-In Expanded Under American Rescue Plan Act of 2021

With the passage of The American Rescue Plan Act of 2021 (ARP), employers with fewer than 500 employees now have the option of continuing pandemic-related paid leave for eligible employees and seeking reimbursement for the paid leave expenses through payroll tax credits. 

As a reminder, the Families First Coronavirus Response Act (FFCRA), passed in 2020, required employers with fewer than 500 employees to provide certain paid leave benefits in response to the pandemic. FFRCA provided paid leave to eligible employees who could not work due to, among other things, (i) COVID symptoms, quarantine due to COVID exposure or a positive test result, and diagnosis; (ii) caring for a qualifying family member who contracted COVID or needed COVID-related care; and (iii) parents of children whose place of care was closed due to COVID precautions.  It also authorized corresponding payroll tax credits employers could use to offset the costs of the paid leave. For more on the FFCRA, including the duration of leave, caps on pay, and the mechanics of applying for payroll tax credits please click here to be taken to our COVID-19 Resource Page for more information, including alerts and recorded webinars on the subject.

The mandate for FFCRA leave expired on December 31, 2020, but Congress, through the 2021 Consolidated Appropriations Act, extended those payroll tax credits for covered employers who voluntarily extended FFCRA benefits to eligible employees through March 31, 2021. Now, the ARP has further extended these payroll tax credits for covered employers who voluntarily offer FFCRA leave to eligible employees and it also expanded the scope of coverage under the FFCRA. The payroll tax credits are now available for employer-paid qualifying FFCRA leave through September 30, 2021. In addition, key provisions of ARP expand the payroll tax credits for employers with fewer than 500 employees who provide FFCRA paid leave to also include:

  • Employees getting vaccines;
  • Employees recovering from any injury, disability, illness, or condition related to such immunization;
  • Employees seeking or awaiting the results of a COVID-19 test when the employee has been exposed to COVID-19 or the employer requested the test;
  • Employees who previously exhausted FFCRA leave and have another qualifying reason for leave (these employees are eligible for up to an additional ten day of leave beginning April 1, 2021); and
  • Employees using emergency family leave for any reason set forth the FFCRA (not just because a child’s school or place of care was closed).

Employers should note, the ARP also increases the amount of emergency family leave pay for which an employer may claim a tax credit from $10,000 to $12,000 per employee. While paid leave remains optional, employers who opt to offer it should apply it consistently throughout the organization. To ensure it is applied fairly, the ARP also introduced new non-discrimination requirements. These new non-discrimination rules bar employers from receiving tax credit if they offer leave in a way that favors highly compensated employees, full-time employees, or employees with greater tenure. 

Employers who are considering opting in to offering FFCRA leave should consult with counsel to understand employee eligibility, caps on the duration and pay rates, and the mechanics of claiming the payroll tax credit. Optional paid leave that does not meet the requirements of FFCRA leave will not be eligible for the ARP’s expanded tax credit.  Additionally, to be eligible for a payroll tax credit, the paid leave must be in addition to leave already available to employees under employer benefit plans, e.g., vacation, sick time, or other paid time off. 

For more information on how the FFCRA applies to your organization, or for any other questions related to the FFCRA and ARP, please contact Adam E. Gersh, shareholder in Flaster Greenberg’s Labor & Employment Practice, or Stephen M. Greenberg, shareholder in Flaster Greenberg’s Tax Practice, for more information. Alternatively, you may contact any member of Flaster Greenberg’s Employment or Tax Practices. 

Supreme Court Rules Discrimination Against LGBTQ Employees Is Discrimination On The Basis Of Sex

In a landmark decision in Bostock v. Clayton County, the Supreme Court of the United States ruled discrimination against LGBTQ employees violates Title VII of the Civil Rights Act of 1964. The 6-3 ruling is significant in that it did not rely on technical grounds, but rather on the legal analysis that disparate treatment of employees based on sexual orientation or gender identity is, by definition, discrimination based on sex. This decision upended what had been settled law until, at least, 2010, which generally held that Title VII’s protections do not extend to discrimination based on sexual orientation or gender identity.

Starting in 2011, the U.S. Equal Employment Opportunity Commission (EEOC), which is responsible for enforcing Title VII, interpreted Title VII to prohibit discrimination against LGBTQ employees, however, many courts did not agree. Eventually, the U.S. Department of Justice under the current administration took the opposite position of the EEOC, creating conflicting interpretations within the executive branch. Indeed, as the Court noted in Bostock, U.S. Congress has repeatedly tried to amend Title VII to expressly prohibit discrimination based on sexual orientation and gender identity to resolve the conflict between these varying interpretations. There is no doubt that this decision is historic and will have the most immediate impact on employers in states where LGBTQ employees are not already protected by state laws or where state laws only provided weak protections. Title VII applies to both the private and public employers with 15 or more employees and to the federal government, employment agencies, and labor organizations.

Although the Supreme Court limited its decision to Title VII, since the decision is rooted in an analysis of the meaning of protections from discrimination “based on sex,” we can expect it will form the basis for future courts to apply greater protections under other federal and state laws outside of Title VII that prohibit sex-based discrimination but were not previously interpreted to protect against discrimination based on sexual orientation or gender identity. The message to businesses is clear: Title VII does not condone discrimination based on sexual orientation or gender identity and that is also likely true of an array of other anti-discrimination laws.

Questions? Let me know.

Crash Course: The Intersection of Race Relations, Employee Relations, and Social Media

Race relations have taken center stage in our 2016 presidential election and in our headlines, so naturally topics of race relations have permeated the workplace.  This raises important issues for employers, especially when faced with employees who openly protest racial discrimination in society at large because such protests may be controversial and increasingly public due to the proliferation of social media.  Most important, employers need to know federal anti-discrimination and anti-retaliation protections may be interpreted by courts to extend to certain types of employee informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or society in general, and expressing support for co-workers who have filed formal charges.

Specifically, 42 U.S.C. § 1981 (“Section 1981”) was enacted to deter racial discrimination in the formation and enforcement of contracts, and also prohibits retaliation, both in and out of employment.  In interpreting Section 1981, the courts of Pennsylvania, New Jersey, and Delaware, among others, held that its protections extend to prohibit retaliation that punishes an individual for opposing conduct that violates Section 1981, whether that individual or some third party was the victim of the § 1981 violation.  In other words, an employee who protests discrimination may have anti-retaliation protections even when the forms of protest may be controversial and even if the employee was not individually a victim of the discrimination that is the subject of the protest.

In a recent employment case, L Brands/Victoria’s Secret Stores, LLC (“Victoria’s Secret”) terminated a district manager for what it perceived to be racist Facebook posts.  As an example, the employee used her Facebook feed to repost a picture depicting a person wearing a Ku Klux Klan-reminiscent white, hooded robe with the Los Angeles Clippers logo and the number 42, and was captioned “Game 5 in LA is Free Sheet Night…Donald Sterling Bobble head doll night too!,” a reference to the headlines about racist actions of Sterling, the Clippers’ owner at the time. When Victoria’s Secret was notified about the posts, it investigated and terminated the employment of the district manager.  The district manager brought suit under Section 1981 alleging she was the victim of retaliation for protesting discrimination by Sterling and others on Facebook.  Victoria’s Secret won the case (at least at the trial level) by showing that, irrespective of the district manager’s subjective intent, the message of the post was so unclear that no reasonable jury could find that this image objectively complained about or protested incidents of race discrimination prohibited by Section 1981.  In this case, the court’s decision rested on its finding that there was no clear connection between the alleged protected conduct and a contractual right and, in any event, the court found no reasonable person could have believed that the underlying incident complained about constituted unlawful discrimination.  As the court further explained, an “oblique reference” to or “mere mention of race” or race-based discrimination does not constitute protected opposition to violations of Section 1981, rather it must be an objectively identifiable protest of discriminatory practices in the formation and/or enforcement of contracts.

Employers can take little comfort in Victoria’s Secret’s win, however, because it was essentially based on the Court’s determination that the content of the district manager’s post was not clear enough to trigger anti-retaliation protections.  Arguably, the result would have been much different if the employee were clearer about her own feelings and tied them to a contract, even if her form of protest was offensive to Victoria’s Secret and its customers.

The takeaway:  Employers must be cautious and should consult with counsel before disciplining employees for conduct that could be construed as protesting discrimination, even when the employee’s conduct appears offensive on its face.

Questions? Let me know.

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