Articles Posted in Employment

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The coronavirus pandemic has drastically affected the American workplace. Throughout the country, employees are working from home, and companies are radically changing the way they get business done. Many of these creative solutions are changing California businesses for the better. Existing employment laws still apply to the new workplace. As an employer, you need to be aware of certain issues that could expose you to liability.

Scheduling Changes

Many companies have been forced to lay off workers or reduce hours to stay in business. Before you make any decisions about firing or layoffs, you should be aware of the potential legal consequences of doing so. Employees who have a written employment contract or are part of a union may have protections against these actions, even in the unprecedented circumstances of a global pandemic. Even changing shifts or job responsibilities could trigger the provisions of such a contract. Consult with an employment lawyer before implementing changes that could expose your business to liability.

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AdobeStock_359915477-300x200Existing employee safety laws can be applied to workers who are exposed to the coronavirus. While it is not yet clear exactly how insurance companies and courts will treat these claims, what is clear is that employers must take precautions to mitigate their liability for COVID-19 exposure in the workplace.

How to Minimize Your Liability for Exposure

In almost every type of civil case, the defendant’s conduct is measured against a standard of reasonable behavior. There are a few instances of strict liability, in which the defendant is liable no matter how reasonable their behavior, but these are limited to inherently dangerous scenarios that are clearly defined under existing torts law.

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eb5-300x200The EB-5 program is a citizenship program that was established in 1990. It was designed to stimulate the American economy by attracting foreign nationals to work and invest in the United States. The EB-5 program can benefit employees and investors by creating a path to obtain citizenship. It can also benefit businesses by allowing them to act as “regional centers” that offer investment opportunities in new commercial areas.

Qualifying Employees for the EB-5 Program

The path to citizenship for individuals is usually based on either (1) a family relationship with a U.S. citizen or lawful permanent residence, (2) humanitarian grounds such as asylum, or (3) employment status with a company engaging in business within the United States. Within the employment category, there are many different options for visas and citizenship. The EB-5 program is designed for investors, not employees, but there are many other options for obtaining lawful immigration status for your employees. Visit the USCIS website to learn more about employment visas for your workers.

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AdobeStock_330926552-300x203We are beginning to see hopeful signs about the ongoing COVID-19 crisis, and the conversation about when and how to reopen the U.S. economy is beginning in earnest.  In the meantime, however, the restrictions remain in effect.  What can businesses do to try to increase their odds of surviving the crisis?

  • Assess all costs and expenses to determine if any costs can be eliminated or delayed. Cut back or cut out expenses that are entirely within your control to adjust.  Where you don’t have the right to cut back, speak with vendors to see if they will agree to temporarily modify terms, perhaps in return for longer terms or other compromises.  Evaluate force majeure provisions to see if the coronavirus pandemic might provide grounds to terminate or renegotiate unfavorable agreements.  Determine if any counterparties are failing to perform under your agreements, and if such nonperformance might allow you to terminate or renegotiate those agreements. Weigh the potential long term costs and potential short term benefits of breaching agreements.  Note renewal and expiration dates of all agreements.  Discuss all of these potential actions with an attorney to make sure that you fully understand the potential risk of taking any of these measures.
  • Review existing lines of credit and other sources of cash, and consider drawing down on those lines in full to increase cash reserves. Speak with existing creditors about potentially delaying payments or other forbearance.
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FFCRA-300x200The Family First Coronavirus Response Act (FFCRA) includes an expansion of both the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA).  The FFCRA is in part designed to combat negative effects of COVID-19 on the workforce.  The Act includes providing qualifying employers (under 500 employees) with certain incentives and tax credits to offset the cost of providing employee paid sick-leave for COVID-19 related reasons.

The US Department of Labor’s Wage and Hour Division is responsible for administering these portions of the FFCRA and is promulgating regulations to implement same to assist working families facing public health emergencies arising out of the pandemic.  The provisions are set to expire on December 31, 2020 and therefore the rules are (currently) effective starting April 1, 2020 through the end of the current year, 2020.

The Department, in addition to issuing rules and providing direction for administration of EPSLA (which requires certain employers provide up to 80 hours of paid sick leave under certain conditions), has stated the following qualifying conditions for assistance:

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AdobeStock_327922973-300x200Don’t let a data security issue become a public relations nightmare for your enterprise.  Huge gains in efficiency and productivity are in the cards for any enterprise that can keep pace with technology.  However, with any technological advance, risks and pitfalls are abound.  Especially when it comes to Data Security.  Indeed, many have already succumbed to these pitfalls; think healthcare agencies, credit reporting agencies, and even the US Government (remember Edward Snowden?).  Considering most businesses and industries are currently in some form of lock-down, Data Security and Data Security Practices are crucial.  If your enterprise is fortunate enough to have remote work capability and your current Data Security practices are somewhat lacking, consider these basic tips for our current COVID-19 Era.

  • Learn from your prior mistakes. It is said we can learn much more form our failures compared to our successes.  If your organization has already been the victim of a Data Security issue, hopefully you have already implemented practices to prevent the same occurrence in the future.  Continually revisiting your Data Security practices is important in many respects, to name just a few:  1) It serves to minimize future occurrences, 2) It serves to reinforce your polices, 3) It demonstrates the importance of the issue to your workforce, and 4) It could serve to cut-off (or at least limit) liability/damages in the event of a failure.  Make regular review of your practices a priority.
  • Limit who has access. Does everyone in your organization need access to all your critical systems and information?  Probably not.  Considering who needs access, and what information they need access to, is an important consideration.
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AdobeStock_333866940-300x200The Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed into law on March 27, 2020.  It includes provisions that are helpful to individuals who find themselves laid off by their employers during this unprecedented time.

The law adds an additional $600 in weekly unemployment benefits from the federal government on top of whatever benefits one would be entitled under state law.  In California, that means individuals could receive up to $1,050 per week, from the date the CARES Act was signed up until July 31, 2020.

The CARES Act also provides for one-time payments to individuals and families.  Individuals making $75,000 per year or less can expect a payment of $1,200.  Married couples filing jointly earning less than $150,000 can expect $2,400, in addition to a $500 payment for each child.  The amounts paid out decrease depending on how much one earns and completely phase-out for individuals earning more than $99,000 and married couples earning more than $198,000.

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AdobeStock_328389408-300x183In the wake of the COVID-19 pandemic, the U.S. federal government passed the CARES Act, a $2 trillion stimulus package aimed at softening the economic distress suffered by American businesses and individuals.  The massive stimulus package authorizes up to $349 billion in forgivable loans through the Paycheck Protection Program to help small businesses pay their employees during the COVID-19 crisis.

When can you apply?

Starting Friday, April 3, 2020, small businesses and sole proprietorships can apply for and receive loans to cover their payroll and other specified expenses through Small Business Administration (SBA) lenders.  Starting April 10, 2020, independent contractors and self-employed individuals can apply for and receive similar loans.

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Covid-19-Adobe-Stock-Photo-300x171In response to the unprecedented challenges presented by the Coronavirus pandemic, several Federal and State laws have been passed to assist businesses during these difficult times.  Some cities have enacted ordinances, and certain companies have announced programs to assist their customers in dealing with the impact of the COVID-19 virus.  These programs include:

Federal Programs

  • The Paycheck Protection Program
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Paycheck-Protection-Program-300x156The U.S. Business Administration (“SBA”) has implemented the Paycheck Protection Program, which provides $349 billion in administered loan and loan forgiveness relief to small businesses in financial need.  Small businesses with less than 500 employees are eligible to participate in the program, in addition to sole proprietors, independent contractors and self-employed individuals.  The Paycheck Protection Program offers loans up to $10 million for business expenses including payroll, rent, mortgage interest, utilities, and certain group health plan fees.  Business that elect to participate in the program are not required to provide collateral or show that their financial hardship is related to the COVID-19 crisis.  The Paycheck Protection Program offers a 6-month grace period in which lenders are obligated to defer loan payments.  Further, business that use their loan on payroll, rent, mortgage interest, or utilities in the 8-week span after the loan is funded can be forgiven up to the full amount of the loan.  This forgiven amount is considered taxable income.  The Paycheck Protection Program will expire on June 30, 2020.

Call an Experienced San Jose Business Lawyer Today  

To schedule your consultation with one of our San Jose business attorneys, call Structure Law Group, LLP today at 408-441-7500 or contact us online.