Business Archives - Samuels Yoelin Kantor LLP

Navigating Oregon’s Leave Updates: SB 1515 Explained

June 27, 2024June 5, 2024 by Brooke Eide

It is no secret that the implementation of Paid Leave Oregon (PLO) over the last year has created many questions for employers and employees alike. To clear up some of these questions, the Oregon State Legislature passed SB 1515. Here’s what you need to know about the changes SB 1515 brings to PLO and other leave policies.

First, SB 1515 caps the amount of leave an employee can take under PLO in a benefit year to 14 weeks. These 14 weeks can include 12 weeks of leave for family leave, medical leave, or safe leave and an additional two weeks of leave for pregnancy, childbirth, or a related medical condition. This cap is lowered from the 18-week cap previously issued under PLO.

Second, SB 1515 provides clarity on how PLO may be used in conjunction with other leave policies starting July 1, 2024. Employers may create an internal policy, or establish a policy via collective bargaining, that specifies the order in which employees may take different types of available leave. Under any policy, Oregon Family Leave Act (OFLA) leave must be provided in addition to PLO, meaning that the two cannot be taken concurrently. However, SB 1515 does not allow recipients of worker’s compensation time loss benefits or unemployment benefits to also receive PLO benefits at the same time.

Third, SB 1515 expands the amount of wage replacement an employee can receive while on paid leave. At a minimum, employers must allow employees to receive benefits under PLO and any accrued but unused paid time off at the same time so employees can receive up to full wage replacement while taking leave under PLO. Alternatively, employers may choose to allow employees to receive PLO and employer provided benefits that exceed 100% of the employees’ regular wage.

Fourth, SB 1515 revises the protected reasons for taking leave under the OFLA. OFLA will no longer cover leave for a worker’s own serious health condition, leave to care for a family member, excluding a sick child, with a serious health condition, or leave to bond with a new child. Instead, each of these protected reasons for leave will be covered exclusively by PLO starting on July 1, 2024. If you have an employee who is already approved to take leave for one of these reasons under OFLA, or who has requested leave for one of these reasons, Oregon Bureau of Labor and Industries (BOLI) requires employers to provide that employee with notice that their leave will not be protected by OFLA as of July 1, 2024. In addition, the employer must inform the employee that their leave may be covered by PLO and provide applicable contact information to the employee. OFLA will continue to cover leave related to a child’s illness, bereavement leave, and leave for any pregnancy-related disability.

Fifth, SB 1515 adjusts time off allowed under OFLA. An additional two weeks of leave will be temporarily provided to employees engaging in the fostering or adoption process. These additional two weeks are only available to employees until December 31, 2024. Starting January 1, 2025, leave associated with the foster and adoption process will be considered as a protected reason for leave under PLO. SB 1515 also caps the amount of time employees can take off for bereavement leave under OFLA. Bereavement leave will be capped at two weeks per family member and four weeks total per year. Thus, if an employee has more than one family member pass in a 12-month period, they will be allowed to take two weeks of protected, unpaid leave per family member with up to four weeks in that 12-month period.

Looking forward, employers will want to review their current leave policies and HR practices to ensure they are compliant with the changes of SB 1515. Employers and employees can also anticipate updated regulations from BOLI that may provide further clarification to the changes outlined above. Should you have any questions about the changes of SB 1515 contact your employment attorney.

Your Employees’ Workday May Begin Sooner Than You Think

November 7, 2022 by Tim Resch

When a workday begins can depend on the type of work performed and necessary steps to start the work each day. But with the ever-growing presence of computer software use in the workforce, can starting up and shutting down a work computer add some extra time to a paycheck? The U.S. Ninth Circuit Court of Appeals says that it is possible.

While many may be quick to compare starting up computers to waiting in line to punch a timecard, the Ninth Circuit ruled that for the call service employees at Connexx, the two are entirely different. In Cadena v. Customer Connexx LLC., decided October 24, 2022, call service employees claimed they should be compensated under the Fair Labor Standards Act (“FLSA”) for the additional 18.9 minutes it takes for their computers to turn on and off each day. Relying on the FLSA and the Portal-to-Portal Act, the Ninth Circuit found that booting up work computers could be compensable time, but shutting the computers down should not.

In specific situations, turning on computers each day can now be likened to the donning and doffing of protective gear. Without the use of functioning computers, the Ninth Circuit concluded that Connexx employees could not access any of the programs necessary to answer customer calls and perform scheduling tasks, the employees’ principal duties. Thus, the time spent starting up their work computers is integral and indispensable to the employees’ principal duties and should be compensated.

This case is a good reminder to all employers that under the FLSA, you are required to pay employees starting at the time of the first principal activity of the day. However, time that passes while the employee is waiting to begin their first activity of the day is not always compensable. For activities to be principal, and thus compensable, they must be integral and indispensable to the employee’s work. In today’s world, it isn’t as easy to determine when compensable time begins as it once used to be. With the days of punching in a timecard and walking straight to a workstation mostly behind us, employers should be aware of what tasks are integral and indispensable to their employees’ job performance and ensure they are compensating them appropriately.

Workplace Vaccination Requirements

March 8, 2021January 6, 2021 by Tim Resch

What You Need to Know About Workplace Vaccination Requirements

Now that the first round of COVID-19 vaccines is being distributed, many of people are wondering how to ensure that their employees are vaccinated as soon as possible. Below are answers to some of the most common questions employers have about workplace vaccine requirements. If you would like specific advice about instituting a vaccine requirement for your employees, please contact an employment lawyer.

Can I require that my employees take the vaccine when it becomes available?

Yes. In general, you can have a requirement that your employees take a publicly available vaccine. However, employers with 15 or more employees are subject to federal laws prohibiting certain employment practices, including requirements that screen out individuals with disabilities and denying requests for reasonable accommodations based on religious beliefs. Many states have equivalent laws that cover smaller employers. Most employers must try to make reasonable accommodations for employees whose disability or religious beliefs prevent them from meeting workplace requirements.

How can I respond if an employee claims to be unable to take the vaccine because of a disability or sincerely held religious belief?

You must determine whether you are required to make a reasonable accommodation for the employee. Unless an employer can demonstrate that a reasonable accommodation is not possible without undue hardship and that an unvaccinated employee poses a direct threat to the health of others, the employer must make a reasonable accommodation for an employee’s disability. An employer also must make a reasonable accommodation for an employee’s religious belief if the accommodation is possible without undue hardship.

In either case, an employer may exclude from the workplace an unvaccinated employee for whom the employer is not required to make reasonable accommodation.

What does reasonable accommodation mean for workplace vaccination requirements?

Whether you can make a reasonable accommodation without undue hardship will depend on the nature of the workforce and the employee’s position. In determining whether an exemption causes undue hardship, you should consider whether the employee’s duties require frequent contact with the public or other individuals whose vaccination rates are unknown and the cost to the business of reducing such contact. Employers may also rely on CDC and OSHA guidance to determine whether an accommodation is possible without undue hardship.

Federal regulations direct employers to determine whether a direct threat exists based on the likelihood and extent of the risk. Like undue hardship, whether your employee constitutes a “direct threat” will depend on the employee’s duties and the progress of the pandemic. As infection rates fall, the likelihood that an unvaccinated employee will constitute a direct threat to others in the workplace may fall.

Employment protections based on religious belief are narrower than protections based on disability. An employer still must provide a reasonable accommodation upon request. However, undue hardship in the religious belief context means that the accommodation would have a more than trivial burden on the employer, such as forcing the employer to treat employees unequally. Employers may not be required to make an accommodation for religious belief if the accommodation is unfair to other employees or forces you to incur significant costs.

As the COVID-19 vaccines become more available, employers will certainly face more pressing questions about requiring employees get the vaccine.

Naturally, many of these questions are novel, and there are complex legal issues employers need to consider. There are also practical considerations – what will the impact be on morale of requiring (or not requiring) employees to provide proof of vaccination. Employers with specific questions should seek guidance from an attorney with experience in employment matters.

Paycheck Protection Program Flexibility Act Signed Into Law

March 8, 2021June 8, 2020 by Michael Walker

On Friday, June 7, 2020, the President signed the ‘‘Paycheck Protection Program Flexibility Act of 2020’’ (PPPFA) into law. This Act, recently passed in Congress by large bipartisan votes, makes a number of significant changes to the Paycheck Protection Program (PPP), which was passed by Congress on March 25, 2020, as part of the Coronavirus Aid Relief, and Economic Security (CARES) Act.

Here are the key changes made by Paycheck Protection Program Flexibility Act:

The Eight-week “Covered Period” is Extended to 24 weeks. The CARES Act required that borrowers under the PPP program spend the loan proceeds in just eight weeks. Many businesses found this a difficult challenge that would cause the unspent portion of their loan to be ineligible for the PPP’s loan forgiveness rules. Borrowers now have a full 24 weeks (or December 31, 2020, if earlier) from their loan funding date to spend the loan proceeds.
Rehiring Safe Harbor Rules Extended. To receive maximum loan forgiveness, the CARES Act required borrows to maintain full-time equivalent employees at a level that existed prior to the Coronavirus pandemic and maintain compensation of full-time equivalent employees of at least 75{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} of prior compensation levels. However, if the borrower had furloughed employees, they did not have to take those cuts into account if the levels of full-time equivalent employees were rehired and their wages are restored to previous levels by June 30, 2020. The Paycheck Protection Program Flexibility Act extends this safe harbor date to December 31, 2020.
Flexibility if Unable to Re-Hire Employees. In addition to the extension of the safe-harbor date, the amount of a borrower’s loan forgiveness will not be reduced if the borrower can document that it was unable to rehire employees due to compliance with requirements established or guidance issued by Health and Human Services (HHS), the Centers for Disease Control and Prevention, (CDC), or the Occupational Safety and Health Administration (OSHA) during the period beginning on March 21, 2020, and ending December 31, 2020, related to the maintenance of standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID–19.
PPP “75/25” Spending Rule Changed to a 60/40-Rule. While not in the CARES Act, a Small Business Administration (SBA) rule and the PPP loan application required that at least 75{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} of a PPP borrower’s loan proceeds be spent on “payroll costs,” as defined in the CARES Act. PPPFA formally codifies this rule but gives borrowers the flexibility to spend up to 40{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} on qualified non-payroll expenses such as rent, mortgage interest and utilities.
Extension of Loan Deferral Period. The CARES Act required that if a loan was not forgiven, the payment of principal and interest on the loan was deferred for six months. After six months, the accrued interest became payable. PPPFA requirements provide for a complete payment deferral until the loan forgiveness amount is remitted by the SBA to the lender (thus satisfying the loan obligation), provided that the borrower applies for the loan forgiveness within 10 months after the end of the covered period. If the borrower does not apply for loan forgiveness, then amortized payments would be required under the loan.
Extension of Loan Maturity from Two Years to Five Years. While the CARES Act did not initially provide for a minimum loan maturity period, an SBA rule administratively set the minimum loan maturity date at two years. PPPFA in effect overrode that administrative decision, requiring that any new PPP loans effective after PPPFA must have a minimum maturity of five years. For PPP loans existing prior to the effective date of PPPFA, PPPFA provides that nothing in its enactment shall be construed to prohibit lenders and borrowers from mutually agreeing to modify the maturity terms of a PPP loan to confirm those existing loans to the new five-year maturity requirement.
Payroll Tax Deferral for PPP Borrowers. The CARES Act allows employers to defer payment of the employer’s portion of Social Security taxes due on employment compensation from March 27, 2020 through December 31, 2020. Such deferred tax must then be paid in two equal installments no later than December 31, 2021 and December 31, 2022, respectively. However, the CARES Act did not permit this deferral option to a PPP borrower after a PPP loan is forgiven. This rule was changed by PPPFA, thus allowing PPP borrowers to utilize this deferral option, even though their PPP loan is forgiven.
More Guidance Expected. PPPFA is effectively “a change of the rules in the middle of the game,” as many PPP borrowers are in the middle of their original eight-week “covered period” in which they were required to spend their PPP loan proceeds. We expect the Treasury Department and the SBA to issue further administrative guidance to help answer the likely questions from PPP borrowers as they adapt to the new rules. SYK will continue to monitor these developments.

Michael D. Walker is a business, tax and estate planning attorney who has worked with individuals and small to medium-sized businesses for nearly 30 years. A careful listener, Michael skillfully guides his clients to meet the wide variety of legal challenges they face in our current complex world.

Notice and Comment Period for Proposed Corporate Activity Tax (“CAT”) Rules Ends

March 8, 2021May 26, 2020 by Valerie Sasaki

Time marches on and the time to comment on several of the Oregon Department of Revenue’s Corporate Activity Tax (“CAT”) rules ends today, May 26 at 5pm. While the Oregon State Bar Taxation Section did not officially comment on the rules, three attorneys, including Samuels Yoelin Kantor, LLP’s Valerie Sasaki, did submit comments on the math problem that is Proposed OAR 150-317-1200. Essentially, the CAT is only imposed on a taxpayer’s Oregon receipts. The question of how to calculate that though, has led to what we believe are some unintended, flawed results for taxpayers that have costs and labor concentrated relative to certain income streams.

While the section did not officially comment, several folks whose names don’t appear on the final comments contributed to discussing the comments and accompanying examples, which you can find below as downloads. We are proud to practice as a part of a community that values good tax policy, even in difficult times.

View comments on OAR 150-317-1200 and examples.

Valerie Sasaki specializes in jurisdictional tax consulting, working closely with Fortune 50 companies involved in audits before the Oregon or Washington Departments of Revenue. She also works with business owners on tax, business, and estate planning issues in Oregon or Southwest Washington.

Retirement Plan Participant May Elect Loan Repayment Deferrals

March 8, 2021April 30, 2020 by Eric Wieland

The Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 does more than aid small businesses. In addition to the PPP loans that received the bulk of the media attention, the CARES Act authorizes qualified retirement plan sponsors to amend retirement plans (401(a), 401(k), 403(b) and government plans) to help participants (qualified employees) who have been adversely economically impacted by the Coronavirus by allowing the deferral of loan payments. Once such an amendment is implemented by a plan sponsor, participants who have outstanding loan amounts from the qualified retirement plan may elect to defer loan payments for up to one year (with interest accruing) between now and December 31, 2020.

The retirement plan participant may elect loan repayment deferrals if they meet one of the following criteria:

They are diagnosed with the Virus by a test approved by the CDC;
Their spouse or dependent is diagnosed with the Virus by a test approved by the CDC; or
They experienced adverse financial consequences as a result of being quarantined, being furloughed or laid off or having work hours reduced due to such virus or disease, being unable to work due to lack of child care due to such virus or disease, closing or reducing hours of a business owned or operated by the individual due to such virus or disease, or other factors as determined by the Secretary of the Treasury.

During any deferral period, interest would continue to accrue. Once loan payments recommence, the accrued interest is included in loan calculations to determine the new payment amounts. The date of the final payment is adjusted by the length of time deferred. The Plan Sponsor may rely on an employee’s certification that the employee satisfies the condition.

Eric Wieland puts his mastery of tax law and sharp attention to detail to work in his practice. He focuses on the areas of Estate Planning, Business Planning, Taxation, Qualified Retirement Plans, ERISA Compliance, and Trust and Estate Administration. The belief that no two clients are alike and no set of legal circumstances or objectives are the same is at the heart of his specialized, individual approach.

SBA Announces Reopening of Paycheck Protection Program (PPP)

March 8, 2021April 28, 2020 by Michael Walker

The Small Business Administration (SBA) has announced that it will resume accepting Paycheck Protection Program (PPP) applications from participating lenders on Monday, April 27, 2020 at 10:30 am EDT. The announcement comes following the April 23, 2020, passage by Congress of H.R.266, the “Paycheck Protection Program and Health Care Enhancement Act.” The President signed the bill into law on April 24, 2020. Among other appropriations to respond to the COVID-19 crisis, the bill adds an additional $310 billion in funding for the PPP. The initial $349 billion in funding was exhausted in less than two weeks following the launch of the PPP.

The second round of funding is expected to also be depleted quickly. Therefore, potential borrowers that failed to receive funding in the first round of PPP should contact their lender as soon as possible to confirm that their loan applications are active.

Treasury Department Releases Additional Guidance on Paycheck Protection Program

March 8, 2021April 9, 2020 by Michael Walker

On April 8, 2020, the U. S. Treasury Department updated its “Frequently Asked Questions (FAQs)” guidance on the Paycheck Protection Program (PPP) that is being administered by the Small Business Administration (SBA). While this document was previously issued by the Treasury Department, it has been updated to address some of the questions that borrowers and lenders have raised as lenders have been inundated with applications for the forgivable loans under the PPP. Congress is currently considering allocating another $200 to $250 billion to the PPP.

Here of some of the highlights under the FAQs:

Computing the $100,000 Cap. For purposes of computing a borrower’s “payroll costs” (which is then multiplied by 2.5 to determine a borrower’s loan amount up to $10 million), the $100,000 cap on an individual’s compensation is limited to “cash compensation,” and does not include employer contributions to defined-benefit or defined-contribution retirement plans (e.g. employer 401(k) contributions), group health care coverage including insurance premiums, and state and local taxes assessed on employee compensation.
Vacation, Family Leave, Etc. PPP loans cover payroll costs, including costs for employee vacation, parental, family, medical, and sick leave. However, this does not include qualified sick and family leave wages for which a credit is allowed under the recently passed Families First Coronavirus Response Act.
Time frame of Payroll Costs Calculation. In calculating “payroll costs” for purposes of determining a borrower’s loan amount, borrowers can calculate their aggregate payroll costs using data either from the previous 12 months or from calendar year 2019.
Independent Contractors. Any amounts that an eligible borrower has paid to an independent contractor or sole proprietor are excluded from the “payroll costs” calculation. However, independent contractors and sole proprietors are themselves eligible to apply for their own PPP loans.
Use Gross Wages for Calculation. “Payroll costs” are based upon an employee’s gross compensation (i.e. not after-tax withholdings). However, the employer-side federal payroll taxes imposed on employee’s compensation is excluded from the payroll costs calculation.
Spending the PPP Money. For purposes of computing the loan amount that is eligible to be forgiven under PPP, the borrower must spend the loan proceeds within eight weeks beginning on the date “the lender makes the first disbursement of the PPP loan to the borrower.” The SBA has previously indicated that, for purposes of the loan forgiveness requirement, no more that 25{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} of the loan proceeds can be used for non-payroll costs permitted under PPP (i.e. rent, interest on mortgage obligations and utility payments).

The FAQs still do not address whether the income allocation to partners in a business taxed as a partnership are included in the payroll costs calculations. Our experience is that lenders have varying interpretations of this issue. Hopefully, more guidance with continue to be provided by the SBA and Treasury Department on this and other issues that have arisen under the PPP.

Contracts, Coronavirus, and Force Majeure: How Does COVID-19 Affect Contract Obligations?

March 8, 2021April 6, 2020 by Van White

When I was a first year law student I learned about contract formation, contractual obligations, and breach of contract. We also learned about a term called Force Majeure. You may have recently seen the term.

Force Majeure is a French term that means something along the lines of “superior or irresistible force”, but it is also a term used in conjunction with contract law. In the context of contract law, force majeure is an uncontrollable event that prevents a party from fulfilling their contractual obligations. Force majeure is commonly thought of as a provision included in the terms and conditions of a contract. But, because “uncontrollable events which prevent a party from fulfilling their contractual obligations” seldom occur, especially on a wide spread basis, force majeure provisions aren’t invoked very often.

I have reviewed many contract provisions meant to excuse a party’s performance under a contract when circumstances beyond their control (such as wars, strikes, government actions, Acts of God, natural disasters) make it so that they can’t perform their obligations, but the events meant to invoke or trigger such contract provisions don’t occur very often. The current COVID-19 outbreak may qualify as such an event, especially in light of the fact that World Health Organization has declared COVID-19 a pandemic and the Governors of Oregon and Washington have issued shelter in place orders and have prohibited many commercial activities. The coronavirus pandemic will cause numerous businesses to not be able to perform their contractual obligations.

A business unable to perform its contractual obligations as a result of COVID-19 should determine if their contract includes a force majeure provision which excuses or delays their performance because of an uncontrollable event, such as the current outbreak. Because of the widespread affect coronavirus has and will have on the ability of a business to fulfill their contractual obligations, force majeure provisions will likely become heavily debated. Professionals across the country have already begun to discuss force majeure provisions and their effect on contract obligations.

Whether or not a force majeure provision excuses or delays a party’s obligation under a contract depends upon the specific language of the provision and the surrounding facts and circumstances. Every situation is different. But, even if a contract does not include a force majeure or similar provision, there may be other legal doctrines that excuse or delay performance, including impossibility or frustration of purpose. This is especially true in light of the recent government stay at home orders and prohibition of many commercial activities. In addition, as a general rule, recognized legal treatises hold that performance prevented by an act of God or other uncontrollable event may be excused.

The outbreak has had an adverse impact on many businesses. It is my hope that parties to a contract will act promptly and honor their implied duty to act in good faith and deal fairly with one another while addressing the adverse affects of the outbreak. If so, it won’t be necessary to argue over whether or not a contract provision, government action, or legal treatise excuses a party from performance under a contract.

If the outbreak has or will affect a party’s ability to fulfill their contract obligations, they should promptly notify the other party to their contract. The sooner the better. We don’t know how long it will take for the situation to improve. Document your communications. Provide details with regard to the impact on your business.

Whether the outbreak causes a business to not be able to provide the goods or services they contracted to provide or delays their ability to do so, or causes them to not be able to pay their bills, rent, or mortgage, if they want their performance to be excused or delayed they should act promptly and be transparent. If concessions or delayed performance are being sought by a party to a contract, they may be asked if they have sought assistance through the government relief programs or insurance coverage. Parties seeking to be excused from performance under a contract should be prepared to provide financial information regarding the impact of the outbreak and a business plan to address the impact.

Because every situation is different, if your business has or will be unable to perform your contractual obligations because of the outbreak, you should consider consulting with an attorney. Samuels Yoelin Kantor is available to assist with the legal issues raised by the COVID-19 outbreak. If you need legal advice or guidance, please feel free to reach out to us. Even if we’re working remotely, we’ll promptly get back to you.

Van M. White III has more than 20 years of experience as a lawyer in Oregon and Washington. Van has been a partner at Samuels Yoelin Kantor since 2001 and has served on the firm’s management committee since 2010.

What You Need to Know About Workplace Vaccination Requirements

Can I require that my employees take the vaccine when it becomes available?

How can I respond if an employee claims to be unable to take the vaccine because of a disability or sincerely held religious belief?

What does reasonable accommodation mean for workplace vaccination requirements?

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