DOL issues enforcement guidance urging staff to recognize a “temporary non-enforcement period” for “reasonable” and “good faith” compliance

The DOL issued Field Assistance Bulletin no. 2020-1 urging its staff to recognize a “temporary non-enforcement period” for employers who are in “reasonable” and “good faith” compliance. To qualify for the benefit of this “non-enforcement period,” the employer must establish all of the following:

1. The employer remedies any violations, including by making all affected employees whole as soon as practicable.  As explained in a Joint Statement by the Department, the Treasury Department and the Internal Revenue Service (IRS) issued on March 20, 2020, [2]  this program is designed to ensure that all covered employers have access to sufficient resources to pay required sick leave and family leave wages.[3]

2. The violations of the Act were not “willful” based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”).

3. The Department receives a written commitment from the employer to comply with the Act in the future.

In other words, an employer who has taken no steps to try to come into compliance with the FFCRA (Families First Coronavirus Response Act) will likely not qualify for the benefits of this “temporary non-enforcement period,” and an employer that has at least tried may qualify for some mitigation but will nonetheless be required to come into compliance, though it may have some time to remedy the violation “as soon as practicable” and may have the benefit of not having the DOL taking further enforcement actions against it in the meantime.