E-Blasts

Social media is abuzz yesterday and this morning concerning organizing efforts by the United Farm Workers (UFW) in the San Joaquin Valley. So far at least they seem to be focused on the blueberry deals. In a Facebook live video, a man filmed hundreds of farm workers holding up signs on the side of a road. In the video, the man discussed that the workers are most upset about the price decrease of a crate of blueberries from $7.00 to $6.50. The workers also complained about the company not treating the workers with respect and dignity, not providing them with protective equipment such as knee and back pads, and their poor living conditions.

Flexibility of IRS Form I-9 Requirements Extended for 30 Days

 By: The Saqui Law Group and Christina Anton

On May 15, 2020, U.S. Immigration and Customs Enforcement (“ICE”) and the Department of Homeland Security (“DHS”) announced they would extend the flexibility related to the in-person Form I-9 compliance. Normally, employers would need to perform an in-person review of an employee’s identity and employment authorization documents but ICE and DHS announced it would allow employers, whose workforce was working remotely, to defer this requirement. The original policy was set to expire May 19, 2020, but ICE and DHS have extended the policy for an additional 30 days. You may read the policy here.

Additionally, employers are expected to inspect an employee’s “Section 2” I-9 documents remotely using “video link, fax, email, etc.” and provide written documentation of their remote onboarding and remote policy for each employee. Once normal operations resume, all employees must report to their employer within three business days for an in-person verification.

Yesterday, May 18, 2020, the SBA released a new Paycheck Protection Program (PPP) Loan Forgiveness Application (Application), which you can find here. In it, the SBA provides several pieces of guidance including how to calculate and apply for loan forgiveness under the PPP. The Application includes a tutorial to assist in filling it out, as well as several clarifications regarding how to determine a borrower’s forgiveness amount.  Of particular note is a provision that allows borrowers to select an alternative payroll period when calculating the 8-week period for their payroll costs. This allows a borrower to begin their 8-week period on the first day of the pay period after the funds are disbursed, rather than on the date that funds are dispersed. This provides flexibility that may better align with the actual payroll practices of borrowers, especially for borrowers who have bi-weekly or shorter payroll cycles.

HEALTH CHECKS AND COMPENSABLE TIME: TIME IS MONEY

By: P. Elizabeth Helms

The Equal Employment Opportunity Commission (“EEOC”) has issued guidance on performing employee health checks specifically in response to the COVID-19 pandemic.  You may read that guidance here.  This guidance provides recommendations as to how and when an employer may opt to take an employees’ temperature and conduct a COVID-19 health screening pursuant to the Americans with Disabilities Act.   Such health checks are permissible under the current pandemic conditions, but not mandatory.

The application for any Paycheck Protection Program (PPP) loan includes a certification by the borrower that “the current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” Most borrowers make this certification without a second thought. After all, the COVID-19 virus and governmental responses have increased the uncertainty of managing small and medium-sized business in ways that we have never experienced.

On April 29, 2020, the California Court of Appeal issued a sobering decision in Stephen Colucci v. T-Mobile USA, Inc., demonstrating once again how important it is to properly respond to employee harassment and discrimination claims and to take steps to avoid potential retaliation claims.  A jury in San Bernardino County awarded the plaintiff, a T-Mobile store manager, over $1 Million in compensatory damages for his harassment and discrimination claim, but added a $4 Million punitive damage award for his claim that he was fired in retaliation for requesting a medical accommodation and complaining about workplace harassment and discrimination.  Even after the Court of Appeal reduced the punitive damage award by more than half, T-Mobile is still left with a judgment against it of over $2.5 Million.

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