The U.S. Department of Labor (DOL) recently published guidance on how small businesses employing less than 50 employees can receive an exemption from the Families First Coronavirus Response Act requirement that employers provide emergency paid sick leave and extended paid leave to employees impacted by the COVID-19 pandemic.
First, the law provides that small businesses and non-profits (under 50 employees) are exempt from providing emergency leave if doing so would jeopardize the viability of the business.
Specifically, under the DOL rule a small employer is exempt from the requirement to provide such leave when:
- Such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;
- The absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or
- The small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity
The DOL recognized that FFCRA leave entitlements have little value if they cause an employer to go out of business and, in so doing, deny employees not only leave but also jobs. Therefore, DOL’s rules attempted to extend the leave benefits as broadly as practicable, but not in circumstances that would significantly increase the likelihood that small businesses would be forced to close.
To elect this small business exemption, the employer must document that the determination has been made pursuant to the criteria set forth by the DOL. The business does not need to notify the DOL or send the documentation to the DOL; rather, an eligible business must simply retain the records of the determination in its business files.
Boreale Law can assist your business in performing and documenting leave determinations under the FFCRA. We are here to answer questions regarding your paid leave policies/practices, and provide guidance as you continue to navigate these uncertain times.
Evictions Delayed for 120 days
Gov. Doug Ducey issued an executive order suspending enforcement of most Arizona eviction orders for 120 days. A landlord may not evict a tenant for non-payment of rent if one of the following situations applies:
- A tenant is under a quarantine order based on a COVID-19 diagnosis;
- A tenant is ordered to self-quarantine by a medical professional based on COVID-19 symptoms;
- A tenant is quarantined based on someone in the home being diagnosed with COVID-19;
- A tenant has a “high-risk” health condition as defined by the CDC;
tenant has lost substantial income resulting from COVID-19; such as:
- Job loss;
- Reduction in pay/hours;
- Workplace closure;
- School closure;
- Other related circumstances.
To review Gov. Ducey’s full executive order, click here.
To be eligible for an eviction delay, tenants must notify their landlord in writing of the nature of their financial hardship or quarantine, and acknowledge that the terms of their lease still apply (i.e., their continuing obligation to pay rent).
The order does not require landlords to waive rent, it merely delays enforcement of an eviction order for 120 days. Landlords may still proceed with evictions based upon breach of a lease other than non-payment (e.g. material health and safety violations, irreparable breach, etc.).
Boreale Law is here to provide guidance as rental issues arise, please call (520) 334-2069 to speak with us today!
Sick Leave Guidance from DOL
The U.S. Department of Labor has issued guidance on the implementation of the Families First Coronavirus Response Act, effective April 1, 2020.
To view the Q&A click here. A printable workplace poster can be found here: Workplace Poster. We expect further guidance in the coming days regarding the exemptions available for employers with fewer than 50 employees.
We have already fielded a number of calls about the effect of this law on various businesses. Call us at (520) 334-2069 with your questions!
Aid Package Passes Senate
The U.S. Senate unanimously passed a nearly $2 trillion aid package last night. It is expected to pass the House by Friday and President Trump is expected to sign the same day. The package includes checks of $1,200 for those with income up to $75,000/$150,000 (individual/married couples). Also included is an increase to unemployment insurance benefits.
Up to $350 billion in small business loans to be administered by the SBA in conjunction with banks and credit unions. The loans may be forgiven if businesses use the funds to cover payroll, rent, and other basic operational expenses. Existing SBA borrowers can also expect some relief.
YOUR PARTNER IN SMART BUSINESS GROWTH!
Boreale Law is here to help with all of your business, employment law, real estate, and estate planning needs. For information about our services, flat-fee pricing or subscription plans, call us at (520) 334-2069.
Dear Friends, Colleagues & Business Owners
On Monday evening, Pima County had its first death related to COVID-19, and the third death in Arizona thus far. As the number of cases and deaths continue to increase in Arizona and throughout the world, State and Federal governments are taking steps to ensure that Americans are adapting to the current environment and practicing social distancing.
On Monday, Gov. Doug Ducey issued an executive order identifying the businesses which are deemed “essential services” and should continue operations in the event he eventually issues a “stay at home” order. While Arizona has yet to join the states which have issued “shelter in place” orders, Gov. Ducey’s proactive step is an effort to ensure continuity of operations that support the community’s efforts to slow the spread of coronavirus.
“Essential Services” include*, but are not limited to, the following:
- Healthcare Operations (hospitals, medical/dental offices, pharmacies, and not fitness centers/gyms);
- Human Services (adult/senior/mental healthcare, home-based and residential care, day care for children of essential service employees);
- Essential Infrastructure Operations (construction, utility services, telecommunication systems, etc.);
- Essential Governmental Functions (law enforcement, court personnel, etc.);
- Charitable/Social Service Organizations (food banks, shelters, etc.);
- Transportation Services (airports, buses, taxi, ride share companies);
- Outdoor Recreation (parks, golf courses, etc.)
- Media Organizations;
- Suppliers (grocery stores, hardware stores, gas stations;
- Banks & Financial Institutions;
- Restaurants (take out, drive-thru and delivery ONLY);
- Critical Trades (i.e. plumbers, electricians, cleaning, security services, etc.); and
- Professional Services (law, accounting, and real estate firms).
*the above list is not exhaustive – to review Gov. Ducey’s full executive order, click here.
Law strives to keep you updated on this quickly-evolving landscape. We
are proud to be listed as an essential business and have already answered dozens
of calls and emails to guide our clients through this turbulent time.
If you have questions about this or other matters, please call (520) 334-2069 to speak with us today!
Tax Day is now July 15
The Arizona Department of Revenue joined the U.S. Treasury in announcing that Arizona taxpayers will have an additional 3 months to file their state tax returns, without interest or penalties, effectively moving the state Tax Day from April 15 to July 15.
Remote Work Policies
You have spent significant time, energy and resources to grow your career and business into what it is today, but because of the coronavirus you are suddenly left with difficult choices and an uncertain future.
In an effort to reverse this current economic trend related to the coronavirus, President Trump considers reopening the economy in an effort to “not let the cure be worse than the problem itself.” Even if the economy does reopen, business practices may have changed for the foreseeable future.
In an effort to practice social distancing, many businesses have made significant changes to their remote work policies and have limited the number of customers and deliveries to their offices and facilities.
Boreale Law is here to help review your remote work policies and advise on workplace best practices!
Boreale Law is here to help!
In response to the ongoing
developments related to COVID-19, our attorneys are rapidly fielding questions
from clients related to employment, leases, breach of contract, estate
planning, and many more topics related to business, legal, and operational issues.
Clients are seeking real-time insight on what to do as the pandemic escalates, and we are closely following national and state developments to help clients navigate this ever-changing situation with practical guidance.
Our office is open, and we remain available to client by phone, email, and video conferencing. Contact us today and let us be your resource!
Arizona voters approved the Minimum Wage and Paid Sick Time Off Initiative, better known as Proposition 206, in November of 2016. Proposition 206 immediately increased Arizona’s minimum wage to $10.00 per hour and requires Arizona employers to provide paid sick time to all employees. The minimum wage increase took effect January 1, 2017; however, the paid sick time does not go into effect July 1, 2017.
Since July 1st is almost here, we wanted to highlight some critical elements that need to be understood in order for businesses to implement policies that adhere to the new regulations. Proposition 206 states that employees of employers with 1 or more employees accrue at least one hour of earned paid sick leave for every 30 hours worked. However, employees’ annual accrual and use of sick leave is capped – 40 hours per year for employers with 15 or more employees, and 24 hours per year for employers with less than 15 employees. Salaried employees are presumed to work 40 hours per week for accrual purposes.
Proposition 206 created new categories for employees to use paid sick time, including:
- Employee mental or physical illness, injury or health condition;
- Time off related to abuse, stalking, sexual violence, or domestic violence of either the employee or the employee’s family member;
- The mental or physical illness, injury or health condition of a family member;
- When an unforeseen public health emergency forces the employee’s workplace to close, or the employee’s child’s school or daycare to close.
Proposition 206 broadly expanded the definition of a “family member” to include:
- A biological, adopted or foster child of any age, in addition, legal wards and children of a domestic partner are classified as a family member;
- The employee’s parents, including biological, foster, stepparents, adoptive parents, and legal guardians of the employee or the employee’s spouse or domestic partner;
- Spouse and domestic partners of the employee;
- Employee’s grandparents, grandchildren, or siblings of the employee or the employee’s spouse or domestic partner;
- Any and all other individuals related by either blood or affinity whose relationship or association with the employee is the equivalent of a family relationship.
It is important for businesses to note that if an employee leaves the job, regardless of the reason, employers are not required to pay out unused accrued paid sick leave time to the employee. However, if the same employer rehires the employee within nine months of the employee’s termination or resignation, the employee is entitled to have all previously accrued paid sick time reinstated.
Therefore, seasonal employees, who are fired and rehired within nine months, are entitled to all of their accrued paid sick leave time. Employees are entitled to roll over their unused paid sick leave time year to year; however, they are not allowed to exceed 40 or 24 hours, depending on the size of the employer.
Employers may use an existing paid time off policy to satisfy the law if it provides benefits at least as generous as Proposition 206, but that approach can be risky. Many employers are choosing to separate sick leave benefits to leave no doubt that their policy is legal.
Proposition 206 is complicated and can be tricky to implement. Contact Boreale Law, PLC and let us help you ensure your business is complying!
Boreale Law is excited to announce our recent move to our new office in the Transamerica Building located at 177 N. Church Avenue, Suite 1100.
If you are in the neighborhood, stop by for a tour; or better yet, schedule an appointment to find out how Boreale Law can be your partner in Smart Business Growth!
In years past, the fabric of our society was woven with wonderful success stories of entrepreneurs who embodied the American Dream. Starting a business from the ground up is the epitome of this pursuit. There are countless examples of pioneers who took out their life savings and risked everything to venture out on their own with little more than an idea. America saw the Wright Brothers as they defied gravity at the beginning of the 20th century. We marveled at Thomas Edison, who created many of the inventions that we enjoy today. Much later we saw a new breed of entrepreneurs, such as Steve Jobs and a host of other technological founders, propel America into the forefront of the internet age. These entrepreneurs all had one thing in common — a deep appreciation for the benefits of hard work, the spirit to succeed, and a social and business environment in which success could take place.
Much of this nearly endless opportunity stems from our historically capitalist system, along with few government regulations preventing entrepreneurs from getting their businesses off of the ground. Every large corporation you see today was once a small business. Unfortunately, countless government regulations have created complex hurdles for would-be business owners, so far fewer entrepreneurs are willing to take the plunge. Even after starting a business, all too often, the new business owner is caught in a web of bureaucratic regulations that stifles not only the ability, but even the will to follow in the footsteps of the American entrepreneurs who we hold in such high regard.
To be certain, some measure of governmental regulations are necessary for the common good. No one wants unsafe drugs on our shelves, asbestos in the walls of our homes, or glass in our vehicles that break into shards in the event of an accident. However, the common sense regulations that do, indeed, help us as a nation are eclipsed by a host of regulations doing seemingly little, but to keep bureaucrats in Washington or state capitals occupied. For instance, the small business owner of today hiring an employee is faced with a number of rules and regulations dictating the nature of the employment relationship, with stiff penalties for non-compliance. Many times business owners choose to stay small rather than deal with additional regulations.
There is hope, however. It is possible to create and grow a successful business — provided we know the rules, understand the procedures, and avoid common pitfalls. This is where Boreale Law, PLC can help. We focus on working with entrepreneurs and business owners, with the goal of helping them navigate the roadblocks set up by governmental agencies. A trusted legal advisor is a valuable asset for those who dare to venture out and seek the American Dream. Boreale Law, PLC — Your Partner in Smart Business Growth!
The Minority and Small Business Alliance of Southern Arizona (MSBA) is seeking nominations.
This year’s event, presented by the Minority and Small Business Alliance of Southern Arizona (MSBA), will be held on September 29, 2016 at Westward Look Resort, 245 E. Ina Rd, Tucson, AZ 85704.
The MSBA is a non-profit 501c(3) organization composed of members from local, state and federal agencies as well as corporations and small business owners. Throughout the year MSBA conducts and/or sponsors educational workshops focused on small business growth and development. The MSBA also hosts an awards banquet to recognize the achievements of minority and small businesses in Southern Arizona. The businesses that we recognize share their experiences that helped to make their organization successful.
We will be recognizing outstanding small businesses in Southern Arizona in the following areas:
MSBA also awards $1,000 scholarships to deserving students attending either the University of Arizona or Pima Community College. To date, more than $78,000 in scholarships has been awarded to 78 students. Funds are collected during our Live Auction/Raffle during the Awards program.
Please take time to review the enclosed packet and consider self-nominating or nominating a deserving small business or advocate. Nominations can also be found on the MSBA website at http://www.msbasa.org/
With its rich and diverse population, this is an important event for Tucson, as it lends valued recognition to aspiring and established small business entrepreneurs.
The secretary’s voice beckons you to the reception area – there is a man with some papers for you. You tentatively greet the stranger who then hands you a stack of paperwork including a summons and legal complaint against your company. The complaint outlines a series of alleged missteps taken by your company related to the recent firing of a disruptive employee. Now you are looking down the barrel of a half-million-dollar lawsuit, not to mention the countless thousands of additional dollars needed for legal fees.
How could this have been avoided? What could have been done in the days and weeks prior to the termination of the troublesome employee to reduce the risk of litigation? There is no silver bullet that can completely prevent the dilemma presented, but there are things that a company can, and certainly should do to minimize the chances of litigation and to limit the company’s exposure to damages in a suit filed by an aggrieved or former employee.
At the core of every company is a standard philosophy; a strategic method to follow while conducting business. These procedures should be laid out in the employee handbook. A poorly written, or worse yet, complete absence of an employee handbook is a time-bomb waiting to explode. All too often companies have fallen victim to costly lawsuits regarding the failure, or perceived failure, to follow employee handbook policies. Other times, companies are sued because an aggrieved employee believes he or she was not treated fairly and that there was no corporate guidance – that is, there was no set of defined rules to outline performance expectations. Do not fall victim to this trap in your business. Having a carefully crafted handbook to meet legal requirements and definitions is essential to the long-term success of any business. The handbook should be viewed in a sense as the “Bible” of the business.
While developing an employee handbook, it is imperative to have self-awareness regarding any liabilities the company may face in the present, as well as the future. The main goal of the employee handbook is to establish company policies and goals to ensure legal protection – of both management and employees. The employee handbook serves in essence as a physical piece of insurance which the company can rely on in the present and in the future should a lawsuit occur. Business owners should invest in a legal professional who is aware of federal and state regulations. Further, they should be cognizant of any special requirements specific to their particular industry, such as the myriad requirements for HIPAA compliance in the medical field.
Finding the proper balance between employee rights and management discretion is an essential part of the employee handbook. Once again, consider a worst case scenario when deciding on tone and language. It is tempting to try to cover all your bases by anticipating future areas of liability, but the priority should be properly spelling out guidelines and practices of the business. Focus on the basics and be sure to carefully word the handbook to maintain management latitude and flexibility depending on the matter involved. This is especially beneficial when adjusting the severity of discipline to the variable circumstances of workplace misconduct; however, it is important to establish baseline procedures to minimize an allegation of disparate or discriminatory treatment.
In the constantly changing nature of business, your employee handbook should evolve with the times as well. At the very least, an annual review of the employee handbook should be included by management in every business. Consistent review of the employee handbook should include keeping up to date with any important federal or state regulations pertinent to your business practices and training your managers accordingly. A legal professional will be aware of the changes to the legal landscape, which are essential to keep up to date with in your handbook. Lastly, receipt of the employee handbook should be documented for each individual employee, including when any changes or updates are made.
Navigating the business world is complicated enough without the risk of a lawsuit, but employment attorneys like Boreale Law are here to help you find your way!
A number of very significant changes are about to impact small business owners. The Department of Labor (DOL) is proposing a major change in “White Collar Exemptions” to the Fair Labor Standards Act (FLSA). These changes are expected to come into play much earlier than previously anticipated, and may be enacted as early as May 16, 2016 – well ahead of previous estimates of June or even later in the summer of 2016.
DOL is specifically proposing a significant increase in salary in order to qualify for white collar exemptions. Employees who meet specific criteria are exempt from federal laws governing overtime pay and minimum wage requirements. These employees must be executive, administrative, professional, or computer employees falling into the current salary threshold stated by DOL – currently $455 per week. If the changes are approved, employers would have to ensure that exempt employees’ salaries are at least $921 per week, in order for them to remain exempt. Further, exempt highly-compensated employees would see salaries rise from $100,000 per year to $122,148 per year to remain qualified for the highly-compensated exemption category.
The rush for DOL to implement the new policy changes is in part due to political considerations. The Congressional Review Act allows Congress up to 60 days to disapprove any major policy changes which have been implemented. In short, if DOL cannot pass these new, significant regulations prior to May 16th, the policy changes will be subject to the scrutiny of the next president and Congress. The current administration is likely to give the go ahead to these proposed changes; however, it is difficult to predict the viability of the changes under the next administration.
Businesses should be aware of these proposed changes, and take action to prepare themselves accordingly. These new rules are expected to impact service-based businesses the most; however all businesses should review their processes and policies to ensure compliance with these changing regulations. Misclassification of employees is a common source of employer liability under the FLSA and a high-priority enforcement area for DOL – emphasizing the crucial importance of taking time to understand federal regulations affecting employee pay. Due to the complexity and changing nature of Federal, State, and Local employment rules, consulting a legal professional can lead to piece of mind in tackling future business endeavors, while minimizing the worry over potential liability. Contact Boreale Law for a business compliance check-up today!
If you need a comprehensive, business-oriented look at employment law rules, regulations, and best practices, you’ll want to attend this seminar on May 6th. I am presenting along with 3 other employment law practitioners. More information can be found here: http://www.nbi-sems.com/Details.aspx/R-68777ER|?ctname=SPKEM.
This seminar is aimed at business owners, HR professionals, and others who routinely deal with employee issues. I hope to see you there!