That 30-day DOL Non-Enforcement Period? More Like 14 days.

Constangy, Brooks, Smith & Prophete, LLP
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Constangy, Brooks, Smith & Prophete, LLP

As we have reported, the U.S. Department of Labor has said that it would take a 30-day non-enforcement position with respect to the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act provisions of the Families First Coronavirus Response Act, provided that employers attempted in good faith to comply.

We thought this would give employers the whole month of April to figure things out. (In good faith, of course.)

Unfortunately, yesterday, Wage and Hour Administrator Cheryl Stanton issued a Field Assistance Bulletin saying that the non-enforcement period runs from the date of enactment of the FFCRA (March 18), not the effective date of the FMLA expansion and paid sick leave provisions (April 1). This means that the DOL’s indulgence will expire two weeks earlier than we had thought -- on April 17, not April 30.

It is unclear what impact the DOL's temporary policy of non-enforcement would have on private lawsuits.

The Bulletin also defines the requirements for an employer to be found to be “in good faith”:

  • The employer must promptly remedy any violations found,

  • The violation was not committed knowingly, or with reckless disregard, of the law. (In other words, the violation was not “willful.”), and

  • The employer agrees in a writing provided to the DOL that it will comply with the law in the future.

The Bulletin concludes as follows: After April 17, 2020, this limited stay of enforcement will be lifted, and the Department will fully enforce violations of the Act, as appropriate and consistent with the law.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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