We Have Far Less Time Left On The DOL’s Thirty Day Non-Enforcement Period Than We Originally Thought

You may recall that the United States Department of Labor indicated that so long as an employer attempted in good faith to comply with the FFCRA, it would allow a thirty-day “non-enforcement” grace period. We originally believed that that meant that we had thirty days from the effective date of the FFCRA of April 1, 2020; meaning that the non-enforcement period would run until April 30, 2020.

Unfortunately, the Wage and Hour Division of the DOL has issued a Field Assistance Bulletin indicating that the non-enforcement period actually begins on date of enactment of the FFCRA (March 18). This means that the thirty-day grace period will expire two weeks sooner than we originally thought, on April 17, 2020. You can read the Bulletin here: https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-1

The Bulletin does give us some useful guidance by defining what an employer must do in order to act in good faith for purposes of the thirty-day grace period.

  • The employer remedies any violations, including by making all affected employees whole as soon as practicable.
  • The violations of the Act were not “willful”; meaning that the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”. This is where getting guidance from your employment counsel can provide you with a defense for honest mistakes.
  • The Department receives a written commitment from the employer to comply with the Act in the future.

Being able to prove that you did not show reckless disregard means that you take objective, concrete steps to comply with the law.

As always, call me if you need assistance and stay safe,

Jay

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