General PERB Rule: The Calexico Emergency Exception
Given the coronavirus pandemic, I’ve gotten a lot of questions about whether there is an “emergency” exception to the duty to bargain over changes within the scope of representation. Yes, there is; it falls under the general “business necessity” defense. The Calexico emergency defense requires an employer to show an actual financial or other emergency that leaves no alternative to the action taken and allows no time for meaningful negotiations before taking action. (Calexico Unified School District (1983) PERB Decision No. 357, adopting proposed decision at p. 20 (“Calexico”); see also San Francisco Community College District (1979) PERB Decision No. 105; Compton Community College Dist. (1989) PERB Dec. No. 720; Oakland Unified School Dist. (1994) PERB Dec. No. 1045; County of San Bernardino (Office of the Public Defender) (2015) PERB Dec. No. 2423-M.) Notably, in all these cases PERB held that the employer did not meet the elements of the Calexico emergency defense. So while the language of the Calexico exception might appear broad, PERB has interpreted it very narrowly.
Effective Date of FFCRA: The Families First Coronavirus Response Act (FFCRA) states that the law is effective no later than 15 days after enactment, which would be April 2, 2020. However, the Department of Labor (DOL) has apparently declared the law effective a day earlier, on April 1, 2020. (Click here.)
Posting Notice of FFCRA to Employees: The FFCRA requires that employers post a notice prepared by, or approved by, the DOL. The DOL has just released a set of posters. (Click here.) I am not aware of what the process is to get a poster “approved” by the DOL. So my advice to employers is to just post the one prepared by the DOL. The FFCRA does not specify a deadline to post the notice; my advice is to post the DOL poster as soon as possible.
Temporary Non-Enforcement by DOL: The DOL has also issued a bulletin stating that it will observe a temporary period of non-enforcement of the FFCRA from March 18 through April 17, 2020. During these first 30 days, the DOL will not bring an enforcement action provided that the employer “has made reasonable, good faith efforts to comply with the Act” which requires that:
- The employer remedies any violations, including by making all affected employees whole as soon as practicable;
- The violations of the Act were not “willful” based on FLSA law; and
- The DOL receives a written commitment from the employer to comply with the Act in the future.
Here is the biggest question in my mind about the newly enacted Families First Coronavirus Response Act. Can the required 2 weeks of paid sick leave be met with the employee’s existing accruals or is the 2 weeks in addition to existing accruals?
The House version of H.R. 6201 (Click here) contained Section 5102(d) which stated:
(d) EMPLOYERS WITH EXISTING POLICIES.—With respect to an employer that provides paid leave on the day before the date of enactment of this Act— (1) the paid sick time under this Act shall be made available to employees of the employer in addition to such paid leave; and (2) the employer may not change such paid leave on or after such date of enactment to avoid being subject to paragraph (1).
This made it pretty clear that the required 2 weeks of paid sick leave must be provided in addition to whatever paid leave the employee had already accrued. However, this language does not appear to be in the version of the bill signed by the President. (Click here.) Is it just a Scribner’s error? Or was it intentionally deleted? If it was intentionally deleted, doesn’t that suggest that employers can meet the 2 week requirement by allowing employees to use existing accrued leave? That certainly would be helpful to public agencies who are not receiving any reimbursement for providing the paid sick leave.
I know many entities are trying to determine the answers to these questions right now ….
On March 18th, the Senate passed H.R 6201, the Families First Coronavirus Response Act, on a 90-8 vote. That evening the President signed the act into law. According to the provisions of H.R. 6201, the law takes effect “not later than 15 days after the date of enactment of this Act.” (See Section 5108.) That would mean the law is effective no later than April 2, 2020.
For paid sick leave, H.R. 6201 defines employer to generally include any public agency covered by the Fair Labor Standards Act. For the paid FMLA, H.R. 6201 does not appear to apply to employers with more than 500 employees. (Section 3102.) However, the way the law is written it appears to apply to all public agencies even if the agency employees more than 500 employees (See FMLA section 101(4)(A)(iii).
The language excluding public agencies from the tax credit for providing paid sick leave and paid FMLA remains. (Section 7001(e)(4) (paid sick leave); 7003(e)(4) (paid family leave).) This means that although public agencies must provide these paid benefits, they apparently will not receive any tax credit to pay for the benefits.
As I noted yesterday, the House version of the Families First Coronavirus Response Act provides for paid sick leave and FMLA. Under the bill, employers will receive a 100% tax credit against the employer portion of social security taxes in order to pay for this benefit. At first, I presumed this reimbursement would apply to public employers. However, I’ve been told and have confirmed that the most recent version of the bill contains a “special rule” that:
STATE AND LOCAL GOVERNMENTS.—This credit shall not apply to the Government of the United States, the government of any State or political subdivision thereof, or any agency or instrumentality of any of the foregoing.
This special rule applies to both the paid sick leave and paid FMLA provisions in H.R. 6201. I’ve been told that state and local governments are trying to eliminate this special rule. However, if this law passes with this language, it appears that public agencies in California will not receive any reimbursement from the federal government for the cost of paid sick leave and FMLA.