Senate Passes CARES Act and DOL Issues Families First Act Guidance

The Senate unanimously passed the Coronavirus Aid, Relief, and Economic Security Act Whiteboardthe “CARES Act”), which provides businesses and individuals impacted by the COVID-19 pandemic with extensive financial relief. House passage is expected to follow shortly. The Department of Labor also recently released much-anticipated guidance regarding the Families First Coronavirus Response Act in the form of fact sheets and Q&A’s, as well as notices and posters that employers are required to display in their businesses, all of which can be found here.

Portions of the CARES Act that will benefit small businesses include widespread expansion of SBA loans and many tax-related savings, credits, and deferrals:

Expansion of SBA 7(a) Loans. Businesses that have been affected by the pandemic and have 500 employees or fewer will be able to obtain SBA 7(a) loans equal to 250% of their monthly payroll (up to an annual rate of pay for each employee of $100,000), up to a maximum loan of $10,000,000. These loans may be forgiven to the extent they are used between February 15, 2020 and June 30, 2020 to fund payroll expenses, make interest payments on mortgages, or pay rent and utilities. The loan forgiveness will be reduced by any proportionate reduction in employees compared to the prior year and a 25% or greater reduction in employee compensation. The amount forgiven will be excluded from the business’ gross income. The loans will be non-recourse (no security or personal guarantee required), and bear interest of 4% with a repayment period of 10 years.

Expansion of Other SBA Loan Programs. The CARES Act will also expand existing loan programs offered by the SBA as follows:

  • The maximum Express Loan will increase from $350,000 to $1,000,000. These loans provide borrowers with revolving lines of credit for working capital.
  • Businesses affected by the pandemic can access Economic Injury Disaster Loans and obtain an advance of up to $10,000 within 3 days of application to maintain payroll, make debt payments, and provide paid sick leave. Businesses that receive a 7(a) loan under the CARES Act will not be eligible to receive an Economic Injury Disaster Loan for the same purpose
  • The SBA will be required to pay the principal, interest, and fees owed on pre-existing SBA loans for six months, beginning with the next payment.

Tax Benefits. The CARES Act provides business with multiple forms of tax relief, including but not limited to refundable payroll tax credits, delay of payroll payments, changes to net operating loss carry back and limits, and roll back of net interest deduction limitation. We suggest you contact your tax advisor to determine what tax relief your business may be entitled to under the CARES Act.

If you have any questions about the CARES Act or the Families First Coronavirus Response Act, including how they may affect your business, contact us at (312) 216-2720 or

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U.S. Department of Labor Posts Families First Coronavirus Response Act FAQ’S

The U.S. Department of Labor recently posted answers to commonly asked questions about the Families First Coronavirus Response Act.  The questions and answers can be found here.

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Families First Coronavirus Response Act Becomes Law

downloadOn March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“Act”), which becomes effective April 2, 2020. Important provisions employers must be aware of include the following:

Family Medical Leave Act Extension.  Division C of the Act allows employees who have been employed for at least 30 days by an employer with fewer than 500 employees to take up to 12 weeks of leave if they cannot work or telework because they must care for a child whose school or care provider is closed or otherwise not available due to a federal, state, or local restriction precipitated by a public health emergency, including the current COVID-19 pandemic. The Secretary of Labor can exempt employers with fewer than 50 employees if the requirement would jeopardize the viability of the employer’s business, but has not yet issued any guidance on the subject.

Key provisions of Division C include the following:

  • The first 10 days off is unpaid, after which, the employer must pay the employee at least two-thirds of their regular pay up to $200 per day or $10,000 total.
  • For hourly employees whose schedules vary, the paid leave rate is calculated using the average number of hours the employee was scheduled per day over the six-month period prior to the leave.
  • Upon the employee’s return to work, employers with at least 25 employees must generally restore the returned employee to the same or an equivalent position as they had prior to taking leave.
  • Employers with fewer than 25 employees need not restore the employee if their prior position doesn’t exist because of changes to employer’s economic or operating condition caused by the pandemic, the employer makes efforts to restore the employee to their prior position, and the employer attempts to contact the employee if a similar position opens up in the next year.

Emergency Paid Sick Leave.  Division E of the Act allows employees (regardless of the length of their employment) to take up to 2 weeks of paid sick leave if they cannot work or telework because they (a) are subject to a quarantine or isolation order because of COVID-19, or they are caring for someone who is (b) were told by a health care provider to self-quarantine because of COVID-19, or they are caring for someone who was, (c) are experiencing symptoms of the novel coronavirus and are seeking a medical diagnosis, (d) are caring for a child whose school or care provider is closed or otherwise not available due to a federal, state, or local restriction due to COVID-19, or (e) are experiencing a similar condition due to COVID-19 as specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. The Secretary of Labor can exempt employers with fewer than 50 employees if the requirement would jeopardize the viability of the employer’s business, but has not yet issued any guidance on the subject.

Key provisions of Division E include the following:

  • Full-time employees are entitled to 80 hours of paid sick leave, while part time employees are entitled to the average number of hours they work over a two-week period.
  • For hourly employees whose schedules vary, the paid leave rate is calculated using the average number of hours the employee was scheduled per day over the six-month period prior to the leave.
  • Employees entitled to paid sick leave due to quarantine or isolation orders, who have been advised by a health care provider to self-quarantine, or are experiencing coronavirus symptoms and seeking medical diagnosis must be paid at their regular rate of pay not to exceed $511 per day or $5,110 in total.
  • Employees entitled to paid sick leave for any other reason must be paid at least two-thirds of their regular pay up to $200 per day or $2,000 total.
  • Sick leave is not paid out to employees upon termination and may not be carried over to another year if the Act is extended.
  • The Secretary of Labor is required to issue guidelines to help employers calculate paid sick leave within 15 days of enactment, as well as a notice that employers must display to inform employees of the availability of paid sick leave within 7 days.

Tax Credits.  Division G of the Act provides employers tax credits to offset their costs of compliance with the Act, including (a) a refundable tax credit against employer Social Security payroll taxes worth 100% of paid sick leave and emergency leave wages under the Act, (b) a tax credit for paid sick leave and emergency leave wages, and (c) a tax credit for amounts employers pay for the employee’s health plan coverage while they are on leave.

Key provisions of Division G include the following:

  • The amount of paid sick leave credit permitted for any calendar quarter cannot exceed the employer’s total payroll tax obligations and, if it does, the excess amount is refundable to the employer.
  • Employers receiving a credit for paid family and medical leave under the 2017 Tax Cuts and Jobs Act cannot receive the above tax credits.
  • These rules are subject to additional expected requirements and guidelines from the Treasury Department.

What We Don’t Know:  At this point the Department of Labor has not issued any guidance regarding exemptions for employers with fewer than 50 employees or from any government authority regarding whether entities with similar ownership should be aggregated when determining whether the Act applies to them.

If you have any questions about the Families First Coronavirus Response Act, including how it may affect your business, contact us at (312) 216-2720 or

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LogoAs communities across the United States grapple with the spread of COVID-19, the attorneys at Marcus & Boxerman remain dedicated to serving one of the industries most impacted by this pandemic—the restaurant and hospitality industry. We continue to advise our clients remotely and have identified strategies that hospitality-focused business should adopt in these unprecedented times:

  • Stay Informed. Illinois has closed all in-person dining at restaurants and bars until March 30, 2020, limiting restaurants to curbside pickup, carry-out, and delivery orders. The order also mandates that restaurant employees and customers maintain social distancing in these establishments. Federal, state, and municipal governments are considering various forms of relief packages, while business associations continue to lobby governments to provide immediate assistance to business owners. For example, the federal government just announced that taxpayers can delay paying income tax on as much as $1 million in taxes owed for up to 90 days past the tax filing deadline. Given that the news is moving quickly on so many fronts, we urge you to stay informed to ensure you make the best decisions for your business. 
  • Manage Your Finances. If your business is short on cash, use credit where you can, or delay expenditures. Postpone any new marketing initiatives, capital improvements, remodeling, or new openings. Also, determine whether the pandemic triggers a “force majeure” clause in the contracts that affect your business. Stay informed as to the availability of small business loans as a result of the COVID-19 pandemic.
  • Be Proactive—Talk, But Don’t Sign. Start a discussion with your banker, landlord, and franchisor regarding your ability to make upcoming payments, but be wary of signing any documents now, especially those that saddle you or your business with new or increased obligations. Although it hasn’t happened yet, it is likely that federal and state governments will soon arrange for low-interest loans or provide other financial relief to small businesses during this difficult time.
  • Seek Franchisor Relief. If you are a franchisee, ensure you understand what your franchisor is doing to support its franchisees. Some franchisors are already helping ease the financial strain on their franchisees by delaying payments royalties and advertising fees, or waiving interest on late payments for a period of time. Franchisors are also implementing temporary brand standards to promote social distancing, allowing greater flexibility in operating procedures, and providing other assistance to their franchisees. Make sure you understand what your franchisor is doing to help its franchisees and ask for flexibility or relief when you need to.
  • Support Your Employees. Ensure your employees understand that you are doing all you can to support them, keep your business running, and make good decisions for the long-term viability of your business and their jobs. If you have to cut hours or even place employees on unpaid leave, advise your employees to apply for unemployment. Consider giving your employees whatever resources you can realistically provide, because once your businesses are running at full capacity again, you’ll likely want them to resume in their prior positions.

We strongly recommend that business owners in the hospitality industry take time to plan how they will conduct their business over the coming months. If you have any questions about how to address the challenges facing your business or need our help, contact us at (312) 216-2720 or

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Important COVID-19 Guidance For Retail Businesses

poster-stop-spread-germsWith the expansion of COVID-19 and a renewed emphasis on corporate responsibility, it’s prudent for all businesses—especially those operating in the retail sector—to formulate a plan to address various issues related to COVID-19.

Retail businesses face a unique challenge during this pandemic because they generally cannot limit person-to-person interaction and their employees are usually unable to work from home. Nevertheless, there are steps that retail businesses should consider to reassure their customers and promote responsible behavior:

  • Promote Good Hygiene. Display informational posters that promote good hygiene and address common questions about COVID-19 in customer and employee areas, including restrooms. Emphasize the need for employees and managers to wash their hands thoroughly and often, avoid touching their faces, and maintain a safe distance between each other and your customers (3-6 feet).
  • Require Sick Employees To Say Home. Require individuals with a fever or respiratory illness to remain at home until they are free of fever (less than 100.4° F), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants). Ensure your managers regularly observe employees for these symptoms and immediately send any affected individual home.
  • Review and Revisit Sick Leave. Ensure your managers and employees understand your sick leave policy. Also consider relaxing your sick leave policy, or even providing additional paid sick leave, for a specific and limited period of time (i.e., 4 weeks) to discourage ill employees from showing up to work.
  • Enhance Cleaning Procedures. Implement enhanced cleaning protocols with your janitorial provider and/or employees to ensure consumer and employee areas are cleaned more often and that frequently touched surfaces are sanitized regularly. Also ensure that essential cleaning and hygiene supplies are available, such as cleaning agents and restroom supplies. Ensure that disposable wipes or other sanitizing products are readily available to employees and customers.
  • Inform Your Customers. Send out an e-mail, create a social media post, or display a poster at your business to inform your customers what specific steps your business is taking to help combat the spread of COVID-19 and protect your customers.
  • Be Prepared. Create contingency plans for late call-offs, no-shows, and suspected or confirmed cases of COVID-19 that may affect your business. Consider notifying your employees of any suspected or confirmed cases and pausing your operations to conduct a deep clean of your business and any common facilities that person may have used.
  • Stay Informed. Check the websites of the World Health Organization and Centers for Disease Control and Prevention regularly, and ensure your managers and employees are taking the recommend steps to prevent the transmission of COVID-19 in your Businesses.

We strongly recommend that business owners take time to discuss and prepare for the effects that COVID-19 could have on their business. If you have any questions about how to tackle the particular challenges facing your business as a result of this pandemic, please contact Marcus & Boxerman at (312) 216-2720 or

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Update: New Illinois Employment Laws Take Effect in 2020

Governor J.B. Pritzker has enacted several sweeping employment laws that will takeqigdiczuae6tk4vhrf3d effect starting at the beginning of 2020. A brief summary of the extensive changes are listed below:

Workplace Transparency Act

The Workplace Transparency Act (WTA) will take effect January 1, 2020. The new law:

  • Prohibits employers from entering into any employee agreements or enacting any employment policies that require employees or applicants to keep allegations of harassment or discrimination confidential; and
  • Prohibits employers from retaliating against employees or applicants for “reporting, resisting, opposing, or assisting in the investigation of harassment or discrimination.”

Victims’ Economic Security and Safety Act

Amendments to the Victims’ Economic Security and Safety Act (VESSA) take effect January 1, 2020 and add a category of protection for victims of “gender violence.” VESSA currently allows victims of domestic violence, sexual assault, and stalking to take unpaid protected leave.

Hotel and Casino Employee Safety Act

The new Hotel and Casino Employee Safety Act takes effect July 1, 2020 and will:

  • Require hotels and casinos to give all employees who work alone in a guest room, bathroom, or casino floor, a free, portable emergency contact device that can be used to summon help if the employee reasonably believes there is an ongoing crime, sexual harassment or assault, or other emergency; and
  • Require hotels and casinos to develop, maintain, and comply with a written anti-sexual harassment policy.

Illinois Human Rights Act (IHRA)

Amendments to the Illinois Human Rights Act (IHRA) take effect July 1, 2020 and will:

  • Change the definition of “employer” from employers with at least 15 employees to any entity that employs one more persons;
  • Expand the definition of “unlawful discrimination” to include discrimination against a person because of his or her actual or perceived race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, or unfavorable discharge from the military;
  • Change the definition of “harassment” to be “unwelcome conduct” on the bases of a person’s actual or perceived race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, or unfavorable discharge from the military, that “has purpose or effect of substantially interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment;”
  • Expand the definition of “working environment” beyond just the physical locations employees perform their duties;
  • Prohibit harassment by an employer against non-employees, including contractors, consultants, and anyone else performing services for the employer;
  • Require employers to annually disclose to the Illinois Department of Human Rights (IDHR) any adverse judgement or administrative ruling against them in the preceding calendar year;
  • Require every employer with employees working in Illinois to provide annual sexual harassment prevention training. The IDHR will establish a publicly available model training program that employers may use. Alternatively, employers may implement their own training as long as it stays within compliance of the model program; and
  • Require bars and restaurants (including coffee shops, cafeterias, and catering facilities) to provide a written sexual harassment policy to all employees within the first calendar week of employment.

It is strongly recommended that employers begin reviewing their employment agreements, policies on harassment and discrimination, and sexual harassment training programs to comply with these new laws. If you have any questions about how to review your employment materials or how these new laws will affect your business, please contact Marcus & Boxerman at (312) 216-2720 or

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Recent Amendment to Illinois Equal Pay Act Prohibits Salary History Questions

The No Salary History law, which takes effect September 29, 2019, prohibits Illinois employers from asking job applicants about their salary history. The law amends the 2003 Equal Pay Act, which made it illegal to pay employees differently based oqigdiczuae6tk4vhrf3dn their sex or race.

Specifically, the law prohibits employers from:

  • Asking job applicants about their salary history;
  • Seeking salary history information from applicants’ previous employers; and
  • Requiring employees to sign contracts or waivers that prohibit them from discussing compensation with other employees.

Any employer who violates the new law may face civil action by their employees to recover lost wages, compensatory damages, special damages (up to $10,000), punitive damage, injunctive relief, and attorney’s fees. Additionally, employers who violate the law are subject to civil penalties of up to $5,000 for “each violation for each employee affected.”

The law does not prohibit:

  • Employees from willingly disclosing their salary history with their employer; however, the employer may not consider that information when making decisions about employment or compensation;
  • Employees from discussing their wages and benefits with each other; and
  • Employers from providing applicants with information about the compensation of the position or discussing applicant expectations about the wages, benefits, compensation, or salary of the position.

Before the new law goes into effect on September 29, 2019, employers should:

  • Review employee handbooks, employment agreements, and other documents to remove any prohibitions about discussing compensation with other employees; and
  • Review application forms and hiring processes to ensure that the forms and processes have no questions regarding salary history.

If you have any questions about the new law or need assistance reviewing your employment materials, please contact Marcus & Boxerman at (312) 216-2720 or

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Illinois Employers: Register for Secure Choice by November 1

In November 2018, Illinois enacted a law requiring employers to provide a state-run retirement program to their private sector employees, known as the Illinois Secure Choice Savings Programemployee discrimination, discretionary bonuses, adverse employment actions Act (Secure Choice). The Illinois legislature describes Secure Choice as a “simple and convenient retirement savings program, for employers who do not already offer a plan,” through regular payroll deductions into a Roth Individual Retirement Account (IRA).

Employers are not allowed to make any contributions to the program and will not be required to pay administrative or facilitation fees. However, they will be responsible for distributing informational materials about Secure Choice to their employees, facilitating employee enrollment, and setting up the payroll deduction process. Employees will always remain in control of their account and can retain their account even if they change jobs. Secure Choice is designed to automatically deduct five percent of employee wages, but employees have 30 days to change that contribution, or opt out of the program entirely.

An employer, defined in Secure Choice as “a person or entity engaged in a business,” is required to provide a Secure Choice account to their employees if the employer:

  1. Has at least 25 full or part-time employees;
  2. Has operated in Illinois for at least two years; and
  3. Does not offer a qualified retirement saving plan.

Registration for employers with at least 500 employees began in November 2018. Registration is now open for all eligible employers. The deadline for employers with 100-499 employees is July 2019, and November 2019 for employers with 25-99 employees. Employers who do not comply with the program may face a penalty of $250 per employee for the first year, and $500 per employee for each following year. If an employer does not want to participate in Secure Choice, they can choose to offer a qualified plan to their workers. Employers that already offer a qualified retirement plan must go online or call client services to indicate their exemption.

If you have any questions about your company’s retirement plan or how to register for Secure Choice, please contact Marcus & Boxerman at (312) 216-2720 or

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Independent Contractors or Employees?: An Über Question

In an advice memo released on May 14th, theNational Labor Relations Board (NLRB) concluded that Uber drivers are independent contractors, not employees. This classification means that under federal labor laws, Uber drivers will be virtually unable to unionize, participate in workplace organizing activities, file labor complaints, or seek protections from the federal government. Additionally, this classification absolves Uber from providing its drivers with healthcare, a guaranteed minimum wage, sick days, and other benefits.


The NLRB’s advice memo finds that because Uber drivers are afforded significant opportunities for economic gain and entrepreneurial independence, they should not be classified as employees. The memo highlights three main features of the Uber system that influenced its decision:

  1. Uber drivers have unregulated freedom to set their own work schedules, including when to accept rides and when to log off the Uber app.
  2. Uber drivers have the freedom to choose their own work locations by choosing where to log into the Uber app.
  3. Uber does not place any restrictions to prevent its drivers from working for competing ride-share companies, which allows drivers the freedom to earn money from multiple different sources.

The memo states that these three factors give Uber drivers enough control over their earnings to be classified as independent contractors. Other factors the NLRB relied on in its decision include Uber’s lack of driver supervision, limited interactions between Uber agents and drivers, Uber’s lack of control over drivers’ vehicles, and Uber’s percentage based fee structure.

Many opponents disagree with the advice memo. As a result, there is now a push to advocate for more state-level legislation to protect Uber drivers and other “gig economy” workers. Some countries such as Canada and Germany have gone so far as to define a third classification of worker called a “dependent contractor” – a freelancer who primarily works for one business – which gives those workers some protections such as termination severance, but not as many as full-time employees.

Although the United States may be far from changing its employee classifications on a federal level, some liberal states are working to increase regulation in workers’ favor. Currently, Illinois uses three factors to determine employment status: (1) whether the worker is free from the employer’s control in relation to work performance; (2) whether the worker performs work that is outside the usual course of the employer’s business; and (3) whether the worker is usually engaged in an independently established business of the same nature as the work performed for the employer. An analysis of these three factors can give employers a good indication whether a worker should be treated as an employee or an independent contractor.

If you have any questions regarding how the NLRB memo could affect your business or whether your workers are considered independent contractors or employees, please contact Marcus & Boxerman at (312) 216-2720 or

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Time’s Up for Sexual Harassment in the Restaurant Industry

The Time’s Up Legal Defense Fund (Defense Fund), known for providing legal assistance to victims of sexual misconduct, recently started targeting McDonald’s restaurants to pursue sexual harassment claims. On May 21, 2019, the Defense Fund, the American Civil Liberties Union, and the fast-food workers coalition Fight for $15mcdonalds-904054_640 announced the filing of 25 new sexual harassment and gender discrimination cases against McDonald’s restaurants.

These new complaints come on the heels of ten harassment and discrimination charges filed against McDonald’s restaurants with the Equal Employment Opportunity Commission (EEOC) in May 2018, and a September 2018 strike where thousands of McDonald’s workers in 10 cities protested the company’s “widespread” misconduct. The Defense Fund states in a letter to top McDonald’s executives that the company failed to adequately address sexual harassment claims filed with the EEOC one year ago.

Of the 25 new cases, 20 were filed with the EEOC, three were filed as civil rights law suits, and two suits stemmed from previous allegations. Current and former McDonald’s workers argue that these allegations include gender-based discrimination, sexual harassment in the workplace, and retaliation for reporting incidents of harassment.

McDonald’s workers are calling for McDonald’s to provide employees better protection against sexual assault and harassment in the workplace by providing comprehensive training for employees and managers, guaranteeing fair and effective processes to report harassment, as well as ensuring employees do not face retaliation for reporting misconduct. These claims are not unique to McDonald’s, however, as workers in the restaurant industry are exposed to sexual harassment at a higher rate than workers in other industries.

The chief executive of McDonald’s, Steve Easterbrook, addressed these concerns in a letter to Senator Tammy Duckworth (D-IL) on Monday, May 20th. He said that the chain has been working with the anti-sexual violence organization, RAINN, to update and improve its policies on harassment by making better efforts to inform employees of their rights, providing training to restaurant owners and general managers and in the next few months will provide harassment training for crew members and launch a reporting hotline. Illinois politicians seem to be wary of relying upon restaurant owners to establish adequate anti-harassment policies, as they proposed a law to require anti-harassment training take place in restaurants. That law, the Restaurant Anti-Harassment Act, is currently under review in the House Rules Committee and is expected to be effective on January 1, 2020.

Although the Defense Fund is currently targeting McDonald’s restaurants exclusively, its focus could soon change to other franchised restaurants, and the restaurant industry as a whole could experience more harassment-related claims as a result of the Defense Fund’s work.

As a restaurant or franchise owner, it is important to ensure that the directors and managers of your company know how to handle sexual harassment complaints and that your employee handbook has clear policies outlining your procedures for how to address workplace sexual harassment. If you have any questions about your sexual harassment policy or how to address employee allegations of sexual harassment in the workplace, please contact Marcus & Boxerman at (312) 216-2720 or

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