Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in Bloomberg Law Daily Labor Report, in “Paid-Leave Promise Turns ‘Mirage’ for Most Workers in Pandemic,” by Ben Penn.

Following is an excerpt:

Attempts to enforce a new paid-leave law for workers affected by the coronavirus are colliding with the reality that the majority of the workforce isn’t eligible for the benefits.

The wide array of exemptions written into the law and subsequent regulations the Department of Labor issued have left few options for thousands of workers who have called the department, lawyers, or advocacy groups for help, according to interviews with a dozen government employees, worker advocates, and private attorneys.

Up to 80% of the workforce may not be eligible, according to an analysis by the left-leaning think tank Center for American Progress. The challenges in enforcing the law and disputes about coverage will likely be tested more frequently as employers call back employees who may still have Covid-19 symptoms or need to care for their children. …

Calls Flood Wage Division

The roughly 700 cases concluded by the Wage and Hour Division include an $800 recovery from a Hawaii retailer found to have illegally denied leave to a worker who needed to care for a child whose school was closed; and $1,600 recouped from an Arizona electrical company that didn’t offer paid sick leave when a worker presented a doctor’s note ordering him to quarantine.

The division continues to announce agreements in which a phone call to an employer denying leave has quickly recovered benefits for workers.

“Within days of the paid leave requirements going into effect, wage and hour investigators across the country swiftly and capably responded to worker complaints and brought employers into compliance under this new law—a truly amazing feat, given that prior to March 2020, federal law had never broadly required private employers to provide paid leave,” Deputy Labor Secretary Patrick Pizzella wrote in a May 26 op-ed in Newsweek.

But these cases don’t yield a high return on enforcement investment, relative to the agency’s traditional practice of recovering minimum wage and overtime pay for multiple workers at a single work-site.

After the initial focus on getting the paid sick-leave program running, it took on less importance within a few weeks because so many jobs had disappeared, Labor Secretary Eugene Scalia said during a May 11 webinar. Expanding unemployment insurance and, more recently, workplace-safety guidance, became higher priorities, Scalia said.

“There’s no shortage of work for the Wage and Hour Division to do, now and in the coming months. I don’t think we’re going to see a heavy enforcement push on the paid leave issues. I think we’re more likely to see those issues come up in the context of other investigations,” said Paul DeCamp, a management attorney at Epstein Becker Green in Washington who ran the WHD under President George W. Bush.

The DOL official said enforcing the paid leave law will remain a top priority for 2020 and into 2021.


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