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  • The Risks of Using In-House Counsel to Conduct Internal Investigations

    March 23, 2021 By R. Douglas Taylor, Jr. | Employment Law

    While employers strive to minimize the occurrence workplace conflicts, complaints about employee conduct may still arise. When the complaint involves allegations of discrimination or other unlawful conduct, it is important for the employer to promptly and thoroughly investigate the complaint and take appropriate action if the complaint is substantiated.

    To manage these investigations, some employers rely on their in-house counsel. However, there are potential downsides to using in-house counsel as the first line of defense when investigating an employee complaint.

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  • Thinking About Hiring an Unpaid Summer Intern?

    March 23, 2021 By R. Douglas Taylor, Jr. | Employment Law

    With another summer approaching, you may be considering hiring an unpaid intern for the summer months. The process for doing so seems cut and dry. However, litigation around unpaid internships has recently increased due to several lawsuits where interns sued their former employers alleging violations of state and federal wage and hour laws by failing to pay interns for work that should have been performed by paid employees.

    To determine whether your intern is entitled to minimum wage or overtime, the U.S. Department of Labor (DOL) has proffered a seven-factor “primary beneficiary test.”

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  • Complying with the District of Columbia’s Accrued Sick and Safe Leave Requirements

    March 23, 2021 By R. Douglas Taylor, Jr. | Employment Law

    For employers located in the greater Washington, D.C. metropolitan area, keeping up with multiple states’ employment law requirements can be challenging. Virginia closely tracks the federal laws that govern employers on issues such as the Family Medical Leave Act and the Americans with Disabilities Act, with only some minor variations, while Maryland mandates employee leave that deviates from both federal law and District of Columbia law.

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  • Avoiding Liability Under the Fair Labor Standards Act

    March 23, 2021 By R. Douglas Taylor, Jr. | Employment Law

    The Fair Labor Standards Act (FLSA) establishes requirements regarding the compensation of employees working in the private sector and in federal, state, and local government positions. To protect employees, the FLSA also prohibits retaliation by employers against employees who complain that their rights have been violated.

    In the past, the FLSA’s anti-retaliation provision has been applied to cases where an employee had been terminated or discriminated against after filing a formal complaint with a governmental agency, typically the U.S. Department of Labor, resulting in the commencement of formal proceedings against the employer.

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  • Legal Considerations When Terminating an Employee

    March 23, 2021 By R. Douglas Taylor, Jr. | Employment Law

    Do you have an employee whose performance isn’t cutting it? If so, you will want to read this summary of the considerations and steps to take before terminating an employee.

    Many employers terminate employees without following some basic procedures that take little effort on the part of the employer but can prevent major headaches later. Following these rules prior to termination can help employers avoid problems post-employment and can provide a full defense to an employee’s claim of wrongful termination.

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  • OSHA Tells Employers: Vaccinated Employees Should Still Wear Face Coverings

    February 3, 2021 By R. Douglas Taylor, Jr. | Employment Law

    Now that COVID-19 vaccines are becoming more widely available in the U.S. and a larger percentage of individuals have been vaccinated, the perception also seems to be growing that employees, now protected against the virus, can just stop wearing their face coverings while in the workplace. Not so, according to Occupational Safety and Health Administration (OSHA).

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  • May I Be Excused? New York Federal Court Says COVID-19 Pandemic a “Natural Disaster,” and Why Your Force Majeure Clause Matters

    January 18, 2021 By Zack R. Andrews | Business Insights

    Throughout the ongoing COVID-19 crisis, one of the biggest challenges facing businesses and the legal community has been the lack of clear judicial direction addressing the pandemic’s impact upon contract performance obligations. Few agreements prepared before the pandemic began likely included provisions expressly providing for such an event. Now, contracting parties are wondering whether they or their counterparts are excused from performing under those pre-existing agreements, and how new agreements should be drafted in an ever-uncertain state of the market. The easy but unhelpful answer so far has been “it depends.”

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  • DOL Explains FLSA Travel Time Payment Rules for Part-Day-Telework Employees

    January 15, 2021 By R. Douglas Taylor, Jr. | Employment Law

    The U.S. Department of Labor (DOL) weighed in again on the question of employee travel time between home and office, i.e ., whether or under what circumstances it is compensable under the Fair Labor Standards Act (FLSA) for “an employee who chooses to telework for part of the day and work at the office for part of the day.” When employees must be paid for travel time has been a long-standing source of confusion for employers, as evidenced by the frequency of the U.S. Department of Labor’s (DOL) opinion letters addressing it.

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  • Can Employers Require Employees to Get the COVID-19 Vaccine?

    January 15, 2021 By Maureen E. Carr | Employment Law

    The arrival of the COVID-19 vaccine foretells a return to normalcy (or some semblance of normalcy) in the workplace and beyond. As the vaccine becomes more widely available, many employers are grappling with the question of whether they can require employees to get vaccinated.

    The answer is yes, but with some limitations.

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  • FFCRA Update: COVID-19 Paid Leave in 2021

    January 13, 2021 By Maureen E. Carr | Employment Law

    The paid leave requirements of the Families First Coronavirus Response Act (“FFCRA”) expired on December 31, 2020, but employers who choose to continue providing such paid leave can benefit from the FFCRA tax credit through March 31, 2021.

    From April 1, 2020 to December 31, 2020, the FFCRA required covered employers (private employers with fewer than 500 employees and certain public employers) to provide the following to eligible employees, in addition to any paid leave already offered by the employer:

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  • DOL Allows Employers to Electronically Post Required FLSA/FMLA Notices

    January 8, 2021 By R. Douglas Taylor, Jr. | Employment Law

    2020 will undoubtedly be remembered as the year of the COVID-19 pandemic, and as the year that telework gained widespread acceptance in the U.S. While remote work creates several benefits for employers, it also comes with some challenges. In guidance issued this week, the U.S. Department of Labor (DOL) took on one of those issues: Under what circumstances can employers satisfy the mandatory requirement to physically post notices (“continuous posting”) or notify employees individually (“individual notices”) under certain federal statutes – here, the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) — by email or internet or intranet websites?

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  • DOL Adjusts their View of Telemedicine to Support FMLA Leave

    January 4, 2021 By R. Douglas Taylor, Jr. | Employment Law

    The U.S. Department of Labor (DOL) has issued guidance clarifying that telemedicine examinations or treatment, which have become increasingly widespread by necessity during the COVID-19 pandemic, may be used by employees as the equivalent of an “in-person visit to a health care provider” for the purpose of establishing a “serious health condition” under the Family and Medical Leave Act (FMLA).

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  • PPP Second Draw – What Businesses and Lenders Need to Know About the New Round of Funding

    December 28, 2020 By Blake W. Frieman | Business Insights

    Many have been waiting for the federal government to pass additional COVID-19 economic stimulus legislation. Those who have a had a particular interest in Congress’s activities include small businesses and lenders who received or lent Paycheck Protection Program (“PPP”) Loans under the CARES Act. Now, more than four months after the last application under the original PPP was accepted, the federal government has passed a bi-partisan COVID-19 stimulus package that contains an extension and modification of the original PPP, which is called the “second draw” program. This note provides a brief overview of the terms of the “second draw” program and a comparison of second draw loans to original PPP loans.

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  • DOL Issues New Tipped Employee Rules under the FLSA

    December 28, 2020 By R. Douglas Taylor, Jr. | Employment Law

    As a Court of Appeals panel in Richmond pointed out recently, employer FLSA obligations are simple enough for employees who receive a traditional hourly wage but get far murkier and more complicated in the restaurant industry, where employees typically receive compensation through tips or gratuities and employers are permitted to take a “tip credit” to offset a part of the minimum hourly wage due restaurant employees.

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  • Deck the Halls (but stay Home) this Holiday Season

    November 3, 2020 By R. Douglas Taylor, Jr. | Employment Law

    The 2020 holiday season is fast approaching. By one recent estimate, nearly 40% of Americans are planning to travel for the holidays, many to visit with family, friends, and loved ones for the first time since the start of the COVID-19 pandemic. Yet there are some parts of the U.S., especially the mid-west and south, that are currently experiencing significant spikes in the rate of COVID-19 infections. The CDC continues to actively discourage travel during the COVID-19 pandemic because “travel increases your chance of getting and spreading COVID-19.”

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  • Tax Implications of PPP Loan Forgiveness

    October 19, 2020 | Business Insights

    Paycheck Protection Program (PPP) loans taken out in connection with the coronavirus (COVID-19) crisis that were subsequently forgiven raise a number of tax questions. A PPP loan may be forgiven in an amount equal to the sum of: (1) payroll costs; (2) interest (but not principal) payments on covered mortgage obligations (for mortgages before February 15, 2020); (3) any payment for any covered rent obligation (for leases beginning before February 15, 2020); (4) covered utility payments (for utilities that were turned on before February 15, 2020), during the covered period .

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  • Creditors’ Rights Questions During COVID-19 – Part 1

    October 15, 2020 By Blake W. Frieman | Business Insights

    As the coronavirus pandemic carries on, many creditors, including landlords and lenders, are wondering to what extent they can enforce leases and contracts, given various relief programs that have been instituted by federal, state, and local governments, such as eviction and foreclosure moratoriums. Below are a couple of scenarios describing such circumstances and answers to address each.

    Q: My commercial tenant has been shut down or forced to reduce operations because of COVID-19, and now the tenant cannot pay its rent. Can I sue to evict?

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  • The IRS Chief Counsel’s Informal Guidance Clarifies Some Issues Left Open after Notice 2020-65 Regarding the “Payroll Tax Holiday”

    October 14, 2020 By R. Douglas Taylor, Jr. | Employment Law

    In addition to Notice 2020-65 and Instructions to Form 941 which we outlined in our recent blog , the IRS Office of Chief Counsel for employee benefits, exempt organizations and employment tax provided informal but insightful guidance on its monthly IRS payroll industry call held on September 3, 2020. The informal guidance was directed in part toward clearing up confusion that remained even after the IRS’s issuance of Notice 2020-65 over whether, or to what extent, employers could simply ignore the “payroll tax holiday” created by the President’s August 8, 2020, Executive Order.

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  • The IRS Chief Counsel’s Informal Guidance Clarifies Some Issues Left Open after Notice 2020-65 Regarding the “Payroll Tax Holiday”

    October 14, 2020 By R. Douglas Taylor, Jr. | Business Insights

    IRS Office of Chief Counsel monthly payroll industry call on September 3, 2020

    In addition to Notice 2020-65 and Instructions to Form 941 which we outlined in our recent blog , the IRS Office of Chief Counsel for employee benefits, exempt organizations and employment tax provided informal but insightful guidance on its monthly IRS payroll industry call held on September 3, 2020. The informal guidance was directed in part toward clearing up confusion that remained even after the IRS’s issuance of Notice 2020-65 over whether, or to what extent, employers could simply ignore the “payroll tax holiday” created by the President’s August 8, 2020, Executive Order .

    Read More...
  • IRS Releases Instructions to Form 941 Expanding on Prior Guidance on Deferral of Social Security Tax

    October 8, 2020 By R. Douglas Taylor, Jr. | Employment Law

    On October 1, 2020, the IRS released instructions for Form 941 providing additional guidelines for reporting deferred Social Security taxes pursuant to the President’s Memorandum (discussed previously on our blog ) and IRS Notice 2020-65 .

    Background

    On August 8, 2020, the Presidential Memorandum directed the Secretary of the Treasury to use his authority pursuant to section 7508A of the Internal Revenue Code to defer the withholding, deposit, and payment of certain payroll tax obligations.

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