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Employment Resources
Louisiana REALTORS • March 20, 2020
Patricia B. McMurray, JD and Melissa M. Grand, JD
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
450 Laurel Street, Chase Tower North, 21st Floor
Baton Rouge, Louisiana 70801
Below are additional employment questions related to the COVID-19 (coronavirus) pandemic. Remember, the governmental response to the coronavirus is rapidly evolving. It is important to refer to the CDC’s website for up-to-date information about the coronavirus' current impact in the United States. Daily updates about the coronavirus are also available from the World Health Organization.
1. My agents are independent contractors. Are they eligible for unemployment benefits?
Short Answer: No, independent contractors are generally not eligible to receive unemployment benefits. See http://www.laworks.net/FAQs/FAQ_UI_ClaimantBenefits.asp#answer_1 and https://www.dol.gov/agencies/whd/flsa/misclassification.
Proper classification as either an independent contractor or an employee is very important. Louisiana Real Estate License Law specifically provides that a real estate salesperson or associate broker is considered an independent contractor of the broker with whom he is affiliated if all of the following conditions are met:
The real estate salesperson or associate broker is a licensee;
Substantially all of the real estate salesperson's or associate broker's remuneration for the services performed is directly related to sales or other output rather than the number of hours worked; and
There is a written agreement between the real estate salesperson or associate broker and the broker that specifies that the real estate salesperson or associate broker will not be treated as an employee. See La. R.S. 37:1446(H).
Improper classification of workers can cause businesses a number of legal problems. In addition to potential fines and penalties for violations of state and federal laws, improper classification can also expose businesses to private causes of action and costly litigation and IRS penalties. Also, the misclassified independent contractors who are later re-characterized as employees may have to be provided all of the same benefits as current employees.
The Louisiana Workforce Commission provides useful resources on this issue: http://www.laworks.net/PublicRelations/COVID_19_Information.asp.
2. Can an employer direct salaried, exempt employees to use vacation or paid time off (PTO) during office closures due to the coronavirus pandemic?
Short Answer: In general, yes. The U.S. Department of Labor offers guidance here: https://www.dol.gov/agencies/whd/flsa/pandemic.
The federal Fair Labor Standards Act (FLSA) does not require employer-provided vacation time. See https://www.dol.gov/agencies/whd/flsa/pandemic. Where an employer offers a bona fide benefits plan or vacation time to its employees, there is no prohibition on an employer requiring that such accrued leave or vacation time be taken on certain days, such as during an office closure. Id.
A U.S. Department of Labor Wage and Hour Division opinion letter regarding forced use of PTO for exempt employees during a plant shut down provides:
Since employers are not required under the FLSA to provide any vacation time to employees, there is no prohibition on an employer giving vacation time and later requiring that such vacation time be taken on a specific day(s). Therefore, a private employer may direct exempt staff to take vacation or debit their leave bank account […] whether for a full or partial day's absence, provided the employees receive in payment an amount equal to their guaranteed salary.
Therefore, a private employer may direct exempt staff to take vacation or debit their leave bank account in the case of an office closure, whether for a full or partial day, provided the employees receive in payment an amount equal to their guaranteed salary.[2] See https://www.dol.gov/agencies/whd/flsa/pandemic. In the same scenario, an exempt employee who has no accrued benefits in the leave bank account, or has limited accrued leave and the reduction would result in a negative balance in the leave bank account, still must receive the employee’s guaranteed salary for any absence(s) occasioned by the office closure in order to remain exempt. Id. For more information, see WHD Opinion Letter FLSA2005-41. See also https://www.nar.realtor/political-advocacy/coronavirus-emergency-legislation-what-realtors-need-to-know.
DISCLAIMER
Information and additional guidance and orders regarding the pandemic are being issued daily. The information is the article was last updated on March 20, 2020 at 4:00 p.m.
These materials are to be used for informational purposes and should not be construed as specific legal advice. These materials are not designed to cover every aspect of a legal situation for every factual circumstance that may arise regarding the subject matter included.
This publication is for reference purposes only and association members or other readers are responsible for contacting their own attorneys or other professional advisors for legal or contract advice. The comments provided herein solely represent the opinions of the authors and is not a guarantee of interpretation of the law or contracts by any court or by the Louisiana Real Estate Commission.
[1] Information and additional guidance and orders regarding the pandemic are being issued daily. The information is the article was last updated on March 20, 2020 at 4:00 p.m.
[2] Exempt, salaried employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions. See https://www.dol.gov/agencies/whd/flsa/pandemic. Exempt salaried employees are not required to be paid their salary in weeks in which they perform no work. Id. Note that not paying exempt employees--because they are out for personal reasons or because they have no more PTO--must to be a full day. Generally, the employee’s salary cannot be docked on a partial day or daily basis. The salary can only be withheld if the employee does not perform any work for an entire workweek. See id.
CORONAVIRUS: EMPLOYMENT RESOURCES
FOR LOUISIANA REALTORS®
UPDATE AS OF MARCH 18, 2020
By:
Patricia B. McMurray, JD and Melissa M. Grand, JD
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
450 Laurel Street, Chase Tower North, 21st Floor
Baton Rouge, Louisiana 70801
This article provides information on the novel coronavirus outbreak, COVID-19, and employment resources related to coronavirus's impact on the real estate industry. Since the coronavirus outbreak began in early December 2019, it has spread around the globe and has had an increasing effect on many aspects of the real estate business. The situation is rapidly evolving. Louisiana REALTORS® continues to monitor the outbreak. Refer to the Centers for Disease Control and Prevention’s (CDC) website, https://www.cdc.gov/coronavirus/2019-ncov/index.html, for up-to-date information on the coronavirus and its impact on the United States.
RESOURCES FOR EMPLOYERS
Numerous employment-related issues are arising due to the coronavirus. The Equal Employment Opportunity Commission (“EEOC”), the agency that enforces the Americans with Disabilities Act (“ADA”), has released a “What You Should Know” statement to assist employers on employment-related issues due to the coronavirus. Importantly, the EEOC states that the ADA rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. The EEOC statement may be found here: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
The EEOC statement directs employers to review the EEOC’s 2009 guidance, Pandemic Preparedness in the Workplace and The Americans with Disabilities Act, found here: https://www.eeoc.gov/facts/pandemic_flu.html#2. The EEOC guidance addresses questions which frequently arise in situations like the coronavirus pandemic, such as, does the ADA allow employers to require employees to stay home if they have symptoms of the pandemic coronavirus?
Also, the National Association of REALTORS® has compiled helpful resources, which may be found here: https://www.nar.realtor/coronavirus-a-guide-for-realtors
and https://www.nar.realtor/coronavirus-resources-and-guidance-for-employers.
DISPARATE TREATMENT ISSUES
The EEOC clearly stated: “DO NOT show prejudice to people of Asian descent, because of fear of this new virus. Do not assume that someone of Asian descent is more likely to have 2019-nCoV.” See https://www.cdc.gov/coronavirus/2019-ncov/downloads/what-you-should-do.pdf. Employers should establish consistently applied and clearly communicated practices regarding self-quarantining of employees. An employer may not base a decision to bar an employee from the workplace on the employee’s race or national origin. However, if an employee, regardless of their race or national origin, was recently in China and has symptoms of the COVID-19 coronavirus, you may have a legitimate reason to bar that employee from the workplace.
EMPLOYEE PAY ISSUES
The U.S. Department of Labor (“DOL”), Wage and Hour Division, provides information on common issues employers and employees face when responding to influenza, pandemics, or other public health emergencies, and their effects on wages and hours worked under the Fair Labor Standards Act (“FLSA”) and job-protected leave under the Family and Medical Leave Act (“FMLA”). See https://www.dol.gov/agencies/whd/pandemic.
On March 14, 2020, the House passed H.R. 6201 known as the Families First Coronavirus Response Act (the “Act”). On March 18, 2020, the Senate approved the legislation and sent it to President Trump for signature. The legislation provides paid leave, establishes free testing for the coronavirus, protects public health workers, and provides benefits to children and families. Employers should watch the Act closely because the provisions contained therein, including three key provisions relating to the workplace, would take effect immediately upon enactment. For further information and updated analysis of the legislation, see https://www.bakerdonelson.com/house-passes-coronavirus-bill-with-immediate-impact-on-employers?utm_source=vuture&utm_medium=email&utm_campaign=20200316%20-%20alert%20-%20l%26e
and https://www.bakerdonelson.com/coronavirus.
DISCLAIMER
This article was updated as of March 18, 2020 at 5 p.m. CST. The coronavirus situation is rapidly evolving, and the above resources should be checked frequently for updates.
These materials are to be used for informational purposes and should not be construed as specific legal advice. These materials are not designed to cover every aspect of a legal situation for every factual circumstance that may arise regarding the subject matter included.
This publication is for reference purposes only and association members or other readers are responsible for contacting their own attorneys or other professional advisors for legal or contract advice. The comments provided herein solely represent the opinions of the authors and is not a guarantee of interpretation of the law or contracts by any court or by the Louisiana Real Estate Commission.
As previewed last week, NAR is pleased to share the latest consumer guide focused on preparing for homeownership. This guide covers what prospective buyers should consider as they kick off the home purchase process, including the importance of credit scores, mortgage pre-approval, down payments, budgeting, and educational resources. As a reminder, all guides in this series are available for download—in both English and Spanish—on facts.realtor . Please allow a few days for the Spanish version of the latest resource to be translated and uploaded. For ease of reference, below is a list of the most recent guides: NEW: Preparing for Homeownership Escrow and Earnest Money Pricing Your Home Preparing to Sell Your Home Fire Damage and Policy Coverage Thank you for your continued engagement with the “Consumer Guide” series and for sharing the resources with potential clients to ensure they have the information they need to be successful in their homebuying or selling journey. Remember that these guides are for informational purposes only and are not meant to enact or change any existing NAR policy. Be on the lookout for next week’s guide on Wednesday, which will cover property taxes.
As previewed last week, NAR is pleased to share the latest consumer guide focused on escrow. This guide covers what homebuyers should know about earnest money deposits, including the general terms and use cases in real estate transactions. As a reminder, all guides in this series are available for download—in both English and Spanish—on facts.realtor . Please allow a few days for the Spanish version of the latest resource to be translated and uploaded. For ease of reference, below is a list of the most recent guides: NEW: Escrow and Earnest Money Pricing Your Home Preparing to Sell Your Home Fire Damage and Policy Coverage Flood Insurance Thank you for your continued engagement with the “Consumer Guide” series and for sharing the resources with prospective clients to ensure they have the information they need to find success in their homebuying or selling journey. Remember that these guides are for informational purposes only and are not meant to enact or change any existing NAR policy. Be on the lookout for next week’s guide on Wednesday, which will cover preparing prospective buyers for homeownership.
The Louisiana REALTORS® Board of Directors will conduct several elections this Spring. Interested candidates that meet the qualification who are looking to serve at either the state association level or the national association level are encouraged to view the criteria and submit an application. An application that is not submitted on the appropriate form or not submitted pursuant to the instructions shall not be considered as submitted timely.
821 Main StreetBaton Rouge, LA 70802
821 Main Street
Baton Rouge, LA 70802