The American Rescue Plan Act of 2021 (ARPA) extends tax credits to those employers who voluntarily choose to provide paid leave benefits to employees under the Families First Coronavirus Response Act (FFCRA).

As you may recall, beginning January 1, 2021, employers with fewer than 500 employees could voluntarily provide paid leave to employees according to the FFCRA for certain qualifying reasons and receive tax credits for the paid leave.  The ARPA has extended employers’ eligibility for tax credits through September 30, 2021.  However, the ARPA contains new non-discrimination rules stating that FFCRA tax credits will not be made available to employers who discriminate in favor of highly compensated employees, full-time employees, or employees on the basis of tenure.

The ARPA also expanded the list of qualifying reasons for taking paid leave under the FFCRA.

Continue Reading ARPA Extends Tax Credits for Employers and Expands Qualifications for FFCRA Leave

Join us for a virtual seminar in which Bass, Berry & Sims labor & employment attorneys will address a broad range of recent employment law developments and anticipated issues significant to employers and provide practical guidance for understanding the associated impacts and legal challenges.

Topics covered during the webinar will include:

  • Return to work update and workplace legal considerations post-pandemic.
  • Anticipated agency changes and new guidance under the Biden administration, including impact on traditional labor and President Biden’s appointment of a commission to study expanding the U.S. Supreme Court.
  • Vaccinations in the workplace: incentive programs, COVID-19 vaccine passports and leave laws related to the vaccine’s side effects.
  • Recent legislation affecting multistate employers, including sexual harassment training, record keeping, family and medical leave, and discrimination.

WEBINAR DETAILS

Title: Labor & Employment Law Update: Recent Developments for Employers

Date: Wednesday, May 5, 2021 Time: 10:00 a.m. – 11:00 a.m. CT

Who Should Attend

  • In-house legal counsel.
  • Human resources professionals.
  • C-level executives, consultants and principals.

This program is pending approval for HRCI and Tennessee CLE credit (1 hour)

Equity compensation – which links the self-interests of a company’s service providers with the interests of the company and its investors – is a compelling incentive for start-up companies to attract and motivate employees and consultants. Many of these employees and consultants understand and expect that equity or phantom equity arrangements will make up a larger portion of their overall compensation than employees at more mature companies. There are a host of considerations involved in designing and granting awards under an equity incentive plan, and here are five important ones:

  1. Decide what type of equity award to issue.
  2. Be discerning in setting up your equity pool and making grants.
  3. Be careful in how you promise equity awards to employees and consultants.
  4. Exercise caution in setting the strike price of an option.
  5. Encourage employees to consult with legal and tax advisors to determine whether it is advisable to file a Section 83(b) election.

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Can an employer be held liable for sexual misconduct at a private party that takes place after an employer-sponsored holiday party?  A recent Tennessee Court of Appeals case appears to say “yes” and thereby presents a new concern for employers considering employer-sponsored events.

In Phelps v. State, an employee sued her employer, the State of Tennessee, for sexual harassment and retaliation claims under the Tennessee Human Rights Act (THRA).  The instances of alleged sexual harassment included serious sexual misconduct (including a sexual assault) at an after-party following a State-sponsored Halloween party.  The court ruled that the State could be liable for these “after-party” events, even though they took place after hours and away from the place of employment.

Background

Continue Reading Halloween Party Turns Scary for State in New Court Decision: Appellate Court Says Employer May Be Held Liable for Off-Duty, Off-Premises Sexual Harassment Claims

Plan sponsors and plan fiduciaries, and vendors, advisors and other service providers: Take notice! The end of the special COVID-19 “Outbreak Period,” which began on March 1, 2020 and continues to apply, is nowhere in sight based on recent guidance from the Department of Labor (DOL) in the form of a Disaster Relief Notice (New Guidance).

This means that the “tolling” of a number of participant and plan deadlines did not end on February 28, 2021, as most plan sponsors and others had assumed based on prior guidance. In fact, for some participants, the tolling period could extend far out into the future. In addition, the new guidance reminds plan sponsors and plan fiduciaries of the “guiding principle” for administering employee benefit plans – act reasonably, prudently and in the interest of workers and their families. Good faith compliance with the new guidance will likely be judged on this standard.

Background

Pursuant to joint guidance issued on May 4, 2020 (Joint Guidance), the DOL and Internal Revenue Service (IRS) suspended or “tolled” a number of participant and plan deadlines. The “tolled” deadlines include:

  • HIPAA Special Enrollment Notice Obligations – the 30-day period (or 60-day period, as applicable) to request special enrollment in a group health plan.
  • COBRA Notices, Elections and Premium Payments – the periods for individuals to notify the plan of certain COBRA events (e.g., a qualifying event, such as a divorce or child losing eligibility), the 60-day period for electing COBRA continuation coverage, and the 45-day (initial) and 30-day (monthly) deadlines for making COBRA premium payments.
  • Claims and Appeal Procedures – the date by which an individual may file a claim for benefits or an appeal of an adverse benefit determination (this applies to all ERISA-both welfare and retirement-plans).

Continue Reading DOL Disaster Relief Notice Offers Guidance on Extension of COVID-19 Outbreak Period Benefits

The National Labor Relations Board (NLRB or Board) recently announced it was changing course on whether students should be considered employees and therefore can unionize. This change of course returns to previous Board precedent from case law that graduate students, and perhaps any students employed for pay, can be considered employees. This change of course also halts what many thought signaled the Board’s desire to answer this issue by rulemaking rather than through case precedent.

On March 15, the Board issued a notice withdrawing a proposed rulemaking from 2019 which many thought signaled the Board’s plan to adopt a rule regarding the status of students as employees under the National Labor Relations Act (NLRA). The result of this withdrawal is that the governing precedent returns to the decision in Columbia v. NLRB in which the Board held that not only graduate students but any students employed for pay, may be employees subject to collective bargaining under the NLRA.

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Looking back on 2020, nearly all employers were forced to embrace remote work as the result of the COVID-19 pandemic to comply with state and local lockdowns and to slow and reduce the transmission of the virus.  This was a global work-from-home experiment no one signed up for, and as we now know, most businesses were ill-prepared to handle it. However, with nearly a full year of remote work underfoot, companies have either successfully transitioned their business operations to sustain this work-from-home model or have adjusted the work environment to safely resume on-site operations, and have learned some key lessons along the way.

Employee Leave

Continue Reading Lessons Learned from COVID-19 and Continued Implications

Join us for a virtual seminar in which Bass, Berry & Sims’ labor & employment attorneys will discuss anticipated legislative developments and agency guidance changes under the new administration, and provide practical advice for understanding the associated impacts and legal challenges to employers.

We will also review the lessons learned from COVID-19, address its continued implications for employers in 2021, and provide guidance for navigating the associated employment issues facing employers, including with respect to:

  • Mandatory Vaccinations.
  • Employee Assistance Benefits.
  • FLSA Pitfalls.
  • Refreshing Company Policies.

WEBINAR DETAILS

Title: Lessons Learned from COVID-19 and What to Expect under the Biden Administration

Date: Wednesday, February 3, 2020 Time: 10:00 a.m. – 11:30 a.m. CT

Who Should Attend

  • In-house legal counsel.
  • Human resources professionals.
  • C-level executives, consultants and principals.

This program is pending approval for HRCI and Tennessee CLE credit (1.5 hours)

As passed back in March 2020, the Families First Coronavirus Response Act (FFCRA)’s Emergency Paid Sick Leave (EPSL) Act and Emergency Family and Medical Leave Act (EFMLA) requirements by which employers with less than 500 employees must provide paid leave for certain COVID-19-related circumstances will expire as of December 31, 2020. The Coronavirus Response and Relief Supplemental Appropriations Act (Supplemental Bill) passed by Congress on December 21 does not extend those requirements beyond the December 31 date. However, the Supplemental Bill does continue to allow covered employers to take tax credits for such paid leave provided to employees between January 1 and March 31, 2021, if that paid leave would have otherwise been consistent with the FFCRA’s requirements if they had been extended beyond December 31.

Continue Reading New Relief Bill Does Not Extend FFCRA Requirements but Does Encourage Voluntary Extension

The Equal Employment Opportunity Commission (EEOC) has released updated guidance regarding employers’ and employees’ rights and obligations related to mandatory COVID-19 vaccination.

Mandatory Vaccinations are Permitted

On December 16, the EEOC released guidance confirming that employers may require employees to be vaccinated for COVID-19, subject to Title VII of the Civil Rights Act (Title VII) prohibiting religious discrimination and the Americans with Disabilities Act (ADA) which prohibits discrimination based on disability.

Continue Reading EEOC Issues Updated Employer Guidance Concerning Mandatory COVID-19 Vaccinations