While managing the fallout from COVID-19 has dominated the focus of employers this year, there have been a number of recent employment law developments unrelated to the virus. During this virtual seminar Bass, Berry & Sims labor & employment attorneys will address legislative developments and agency guidance with respect to a number of these issues

On September 11, in response to a New York federal district court striking down some of the Department of Labor (DOL) regulations regarding the Families First Coronavirus Response Act (FFCRA), the DOL issued guidance (Guidance) affirming in part and revising in part, its regulations. While most of the Guidance does not result in any significant change or consequence to employers, the DOL’s revision of its prior definition of “health care provider” significantly impacts how healthcare entities in the U.S. must implement paid leave benefits under the FFCRA.

Work Availability

The Guidance clarifies that the “work-availability” requirement under the FFCRA applies to all types of leave taken under the FFCRA. In other words, to take any leave under the FFCRA, the FFCRA-qualifying reason must be the actual reason that the employee is unable to work rather than the employer not having work available for the employee to perform. The DOL makes clear in the Guidance that the “work-availability” requirement ensures that employers are not forced to provide paid leave benefits under the FFCRA where the employer would not have had work for the employee to perform, regardless of whether the employee has a qualifying reason for leave under the FFCRA.


Continue Reading DOL Issues Another Round of Guidance on FFCRA

On August 3, the federal court for the Southern District of New York (SDNY) issued an order invalidating several significant portions of the Department of Labor’s (DOL’s) Final Rule regarding the Families First Coronavirus Response Act (FFCRA). The SDNY struck down the following provisions:

  1. That work has to be otherwise available to the employee for the employee to be eligible for Emergency Paid Sick Leave (EPSL).
  2. The DOL’s expansive definition of “healthcare providers” for the purposes of who can be excluded from the FFCRA mandated leave.
  3. That an employer must agree to the use of EPSL on an intermittent basis by employees for reasons not related to the possible spread of COVID-19 by the employee.
  4. That an employee must provide documentation requesting FFCRA before the beginning of the leave.

This ruling clearly applies in the Southern District of New York, however, its impact outside of the district is uncertain. As of now, employers who operate in that jurisdiction may have differing obligations under the FFCRA than employers operating outside.

A more detailed description of the ruling is provided below.


Continue Reading Court Ruling Invalidates DOL’s Final Rule Related to FFCRA

Bass, Berry & Sims attorneys Davidson French, Bob Horton and Kimberly Veirs recently presented a Middle Tennessee Society for Human Resource Management’s (MTSHRM) webinar.

The webinar, entitled “Update on Federal Legislation in Response to COVID-19 Pandemic Impacting Employers,” reviewed the latest DOL guidance for employers implementing the provisions of the Families First Coronavirus Relief Act

Since the passage of the Families First Coronavirus Response Act (FFCRA), many healthcare organizations, especially those with a structure that includes a friendly or captive PC model, have struggled to determine whether they may aggregate employees across all affiliated entities to reach the 500-employee threshold that exempts employers from the paid leave requirements of the FFCRA.

However, based on rolling FFCRA guidance recently issued by the Department of Labor (DOL), employers of healthcare providers may exclude such employees captured by the DOL’s definition of healthcare provider from paid leave benefits under the FFCRA.  Because of the broad scope of the definition of healthcare provider recently provided by the DOL, many healthcare organizations and even those entities that provide services to healthcare organizations may be able to exclude all of their employees from paid leave benefits under the FFCRA regardless of whether they meet the 500-employee threshold.


Continue Reading DOL Offers Definition of Healthcare Provider under FFCRA

Please note that the content below was posted on March 30, 2020. We have since provided updated guidance on the topics discussed in this post here.

The U.S. Department of Labor (DOL) is issuing ongoing guidance regarding the application of the Families First Coronavirus Response Act (FFCRA).  The guidance has provided answers to many pressing questions faced by employers as they prepare to implement the FFCRA’s requirements starting April 1, 2020, including how a “healthcare provider” is defined, whether furloughed employees are entitled to paid leave benefits, whether leave under the FFCRA may be taken intermittently, and the application of the small business exception.  DOL’s guidance can be found here.  Below is a summary of some of the most common FAQs.


Continue Reading DOL Issues Second Round of Guidance on FFCRA

Please note that the content below was posted on March 26, 2020. We have since provided updated guidance on the topics discussed in this post here.

The Department of Labor has issued a Notice Poster outlining employees’ rights under the Families First Coronavirus Response Act’s (FFCRA). This poster must be displayed in a conspicuous place in a location visible to employees and is available for download on the DOL website.  Additional facts regarding posting requirements can be found here.

Both the FFCRA’s leave provisions (Paid Sick Leave and Emergency FMLA) apply to private employers with fewer than 500 employees.  The Department of Labor has issued a Questions and Answers resource addressing one of the FFCRA’s most lingering questions – which employees are counted for purposes of the 500 or less employee threshold?


Continue Reading DOL Issues Notice Poster and Answers to FFCRA Frequently Asked Questions Clarifying 500-Employee Threshold

Bass, Berry & Sims attorney Doug Dahl provides an update regarding the Department of Labor’s (DOL) fiduciary rule, which sets forth when an individual becomes a fiduciary by providing investment advice to employer retirement plans. While the final rule was released in April 2016, numerous delays have postponed entire implementation until July 2019. Until then, Doug recommends employers consider the following:

Continue Reading The DOL’s Fiduciary Rule: Alive, Dead or Both?

In an article for the October 2017 issue of The Corporate Counselor, Bass, Berry & Sims attorney Tim Garrett examined the latest ruling related to the Department of Labor’s (DOL) overtime rule following Texas Federal Judge Amos Mazzant’s final rule striking down the Obama-era rule. If implemented, the rule would more than double the minimum salary that employers would have to pay “white-collar” workers to meet overtime pay exemptions. Judge Mazzant’s final ruling cited that the DOL rule had made the salary level too high and that the exemption would inadvertently become based on pay and not duties of the position. Following the ruling, the DOL withdrew its appeal of the preliminary injunction and the Fifth Circuit granted the request.

Continue Reading Update: Stage Now Set for DOL to Adopt More Modest Salary Level for Overtime Exemptions

The unwinding continues. The U.S. Department of Labor (DOL) recently announced the withdrawal of the Obama administration’s previously issued informal guidance on independent contractors and joint employers.

In a very brief statement, the DOL announced that it was withdrawing a 2016 interpretation of the Fair Labor Standards Act (FLSA) which expanded the joint employer standard from one requiring a business to have direct control over an employee to a more broad and ambiguous standard of indirect control.


Continue Reading DOL Withdraws Obama-era Letters on Joint Employer and Classification Guidance