Employment Resources
Louisiana REALTORS • March 20, 2020
Patricia B. McMurray, JD and Melissa M. Grand, JD
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
450 Laurel Street, Chase Tower North, 21st Floor
Baton Rouge, Louisiana 70801
Below are additional employment questions related to the COVID-19 (coronavirus) pandemic. Remember, the governmental response to the coronavirus is rapidly evolving. It is important to refer to the CDC’s website for up-to-date information about the coronavirus' current impact in the United States. Daily updates about the coronavirus are also available from the World Health Organization.
1. My agents are independent contractors. Are they eligible for unemployment benefits?
Short Answer: No, independent contractors are generally not eligible to receive unemployment benefits. See http://www.laworks.net/FAQs/FAQ_UI_ClaimantBenefits.asp#answer_1 and https://www.dol.gov/agencies/whd/flsa/misclassification.
Proper classification as either an independent contractor or an employee is very important. Louisiana Real Estate License Law specifically provides that a real estate salesperson or associate broker is considered an independent contractor of the broker with whom he is affiliated if all of the following conditions are met:
The real estate salesperson or associate broker is a licensee;
Substantially all of the real estate salesperson's or associate broker's remuneration for the services performed is directly related to sales or other output rather than the number of hours worked; and
There is a written agreement between the real estate salesperson or associate broker and the broker that specifies that the real estate salesperson or associate broker will not be treated as an employee. See La. R.S. 37:1446(H).
Improper classification of workers can cause businesses a number of legal problems. In addition to potential fines and penalties for violations of state and federal laws, improper classification can also expose businesses to private causes of action and costly litigation and IRS penalties. Also, the misclassified independent contractors who are later re-characterized as employees may have to be provided all of the same benefits as current employees.
The Louisiana Workforce Commission provides useful resources on this issue: http://www.laworks.net/PublicRelations/COVID_19_Information.asp.
2. Can an employer direct salaried, exempt employees to use vacation or paid time off (PTO) during office closures due to the coronavirus pandemic?
Short Answer: In general, yes. The U.S. Department of Labor offers guidance here: https://www.dol.gov/agencies/whd/flsa/pandemic.
The federal Fair Labor Standards Act (FLSA) does not require employer-provided vacation time. See https://www.dol.gov/agencies/whd/flsa/pandemic. Where an employer offers a bona fide benefits plan or vacation time to its employees, there is no prohibition on an employer requiring that such accrued leave or vacation time be taken on certain days, such as during an office closure. Id.
A U.S. Department of Labor Wage and Hour Division opinion letter regarding forced use of PTO for exempt employees during a plant shut down provides:
Since employers are not required under the FLSA to provide any vacation time to employees, there is no prohibition on an employer giving vacation time and later requiring that such vacation time be taken on a specific day(s). Therefore, a private employer may direct exempt staff to take vacation or debit their leave bank account […] whether for a full or partial day's absence, provided the employees receive in payment an amount equal to their guaranteed salary.
Therefore, a private employer may direct exempt staff to take vacation or debit their leave bank account in the case of an office closure, whether for a full or partial day, provided the employees receive in payment an amount equal to their guaranteed salary.[2] See https://www.dol.gov/agencies/whd/flsa/pandemic. In the same scenario, an exempt employee who has no accrued benefits in the leave bank account, or has limited accrued leave and the reduction would result in a negative balance in the leave bank account, still must receive the employee’s guaranteed salary for any absence(s) occasioned by the office closure in order to remain exempt. Id. For more information, see WHD Opinion Letter FLSA2005-41. See also https://www.nar.realtor/political-advocacy/coronavirus-emergency-legislation-what-realtors-need-to-know.
DISCLAIMER
Information and additional guidance and orders regarding the pandemic are being issued daily. The information is the article was last updated on March 20, 2020 at 4:00 p.m.
These materials are to be used for informational purposes and should not be construed as specific legal advice. These materials are not designed to cover every aspect of a legal situation for every factual circumstance that may arise regarding the subject matter included.
This publication is for reference purposes only and association members or other readers are responsible for contacting their own attorneys or other professional advisors for legal or contract advice. The comments provided herein solely represent the opinions of the authors and is not a guarantee of interpretation of the law or contracts by any court or by the Louisiana Real Estate Commission.
[1] Information and additional guidance and orders regarding the pandemic are being issued daily. The information is the article was last updated on March 20, 2020 at 4:00 p.m.
[2] Exempt, salaried employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions. See https://www.dol.gov/agencies/whd/flsa/pandemic. Exempt salaried employees are not required to be paid their salary in weeks in which they perform no work. Id. Note that not paying exempt employees--because they are out for personal reasons or because they have no more PTO--must to be a full day. Generally, the employee’s salary cannot be docked on a partial day or daily basis. The salary can only be withheld if the employee does not perform any work for an entire workweek. See id.
CORONAVIRUS: EMPLOYMENT RESOURCES
FOR LOUISIANA REALTORS®
UPDATE AS OF MARCH 18, 2020
By:
Patricia B. McMurray, JD and Melissa M. Grand, JD
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
450 Laurel Street, Chase Tower North, 21st Floor
Baton Rouge, Louisiana 70801
This article provides information on the novel coronavirus outbreak, COVID-19, and employment resources related to coronavirus's impact on the real estate industry. Since the coronavirus outbreak began in early December 2019, it has spread around the globe and has had an increasing effect on many aspects of the real estate business. The situation is rapidly evolving. Louisiana REALTORS® continues to monitor the outbreak. Refer to the Centers for Disease Control and Prevention’s (CDC) website, https://www.cdc.gov/coronavirus/2019-ncov/index.html, for up-to-date information on the coronavirus and its impact on the United States.
RESOURCES FOR EMPLOYERS
Numerous employment-related issues are arising due to the coronavirus. The Equal Employment Opportunity Commission (“EEOC”), the agency that enforces the Americans with Disabilities Act (“ADA”), has released a “What You Should Know” statement to assist employers on employment-related issues due to the coronavirus. Importantly, the EEOC states that the ADA rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. The EEOC statement may be found here: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
The EEOC statement directs employers to review the EEOC’s 2009 guidance, Pandemic Preparedness in the Workplace and The Americans with Disabilities Act, found here: https://www.eeoc.gov/facts/pandemic_flu.html#2. The EEOC guidance addresses questions which frequently arise in situations like the coronavirus pandemic, such as, does the ADA allow employers to require employees to stay home if they have symptoms of the pandemic coronavirus?
Also, the National Association of REALTORS® has compiled helpful resources, which may be found here: https://www.nar.realtor/coronavirus-a-guide-for-realtors
and https://www.nar.realtor/coronavirus-resources-and-guidance-for-employers.
DISPARATE TREATMENT ISSUES
The EEOC clearly stated: “DO NOT show prejudice to people of Asian descent, because of fear of this new virus. Do not assume that someone of Asian descent is more likely to have 2019-nCoV.” See https://www.cdc.gov/coronavirus/2019-ncov/downloads/what-you-should-do.pdf. Employers should establish consistently applied and clearly communicated practices regarding self-quarantining of employees. An employer may not base a decision to bar an employee from the workplace on the employee’s race or national origin. However, if an employee, regardless of their race or national origin, was recently in China and has symptoms of the COVID-19 coronavirus, you may have a legitimate reason to bar that employee from the workplace.
EMPLOYEE PAY ISSUES
The U.S. Department of Labor (“DOL”), Wage and Hour Division, provides information on common issues employers and employees face when responding to influenza, pandemics, or other public health emergencies, and their effects on wages and hours worked under the Fair Labor Standards Act (“FLSA”) and job-protected leave under the Family and Medical Leave Act (“FMLA”). See https://www.dol.gov/agencies/whd/pandemic.
On March 14, 2020, the House passed H.R. 6201 known as the Families First Coronavirus Response Act (the “Act”). On March 18, 2020, the Senate approved the legislation and sent it to President Trump for signature. The legislation provides paid leave, establishes free testing for the coronavirus, protects public health workers, and provides benefits to children and families. Employers should watch the Act closely because the provisions contained therein, including three key provisions relating to the workplace, would take effect immediately upon enactment. For further information and updated analysis of the legislation, see https://www.bakerdonelson.com/house-passes-coronavirus-bill-with-immediate-impact-on-employers?utm_source=vuture&utm_medium=email&utm_campaign=20200316%20-%20alert%20-%20l%26e
and https://www.bakerdonelson.com/coronavirus.
DISCLAIMER
This article was updated as of March 18, 2020 at 5 p.m. CST. The coronavirus situation is rapidly evolving, and the above resources should be checked frequently for updates.
These materials are to be used for informational purposes and should not be construed as specific legal advice. These materials are not designed to cover every aspect of a legal situation for every factual circumstance that may arise regarding the subject matter included.
This publication is for reference purposes only and association members or other readers are responsible for contacting their own attorneys or other professional advisors for legal or contract advice. The comments provided herein solely represent the opinions of the authors and is not a guarantee of interpretation of the law or contracts by any court or by the Louisiana Real Estate Commission.
The National Association of REALTORS® Board of Directors approved a 2026 budget with no dues increase and passed a Professional Standards Recommendation to clarify language in NAR Code of Ethics Standard of Practice 10-5, which prohibits harassment of any person or persons protected under Article 10 of the Code. A day earlier, the Executive Committee approved another Professional Standards change, revising language for Policy Statement 29 designed to ensure state and local associations can fairly and consistently enforce the Code of Ethics. Learn more about the changes. Read the revised Code of Ethics and Standards of Practice. Board members also approved a consent agenda to elect the 2026 officers and regional vice presidents . Christine Hansen of Ft. Lauderdale, Fla., was elected 2026 President-Elect, and Colin Mullane of Ashland, Ore. was elected 2026 First Vice President. The meeting opened with a video message from President Donald Trump, who welcomed REALTORS® to Washington and thanked them for support of the House-passed tax reform. NAR routinely invites the U.S. president to address REALTORS® at the Washington meetings. Over NAR's history, nine sitting presidents have addressed the association. Board Actions Approved a series of Finance Committee recommendations, accepting the association’s financial statement, approving the 2026 operating and advocacy budgets, and keeping dues at $156. The board actions also redirect $35 of the $45 Consumer Advertising Campaign assessment to operating funds. This change positions NAR to make its next settlement payment in February 2026 and maintain a balanced budget without raising total dues. The remaining $10 for the Consumer Advertising Campaign will fund optimized, metrics-driven activities that reach and engage consumers in critical markets. NAR CEO Nykia Wright and President Kevin Sears explained the shift at the opening session of the conference . Amended Standard of Practice 10-5 to give state and local associations greater clarity in how to fairly and consistently enforce Article 10 of the Code of Ethics. The amended Standard of Practice says that REALTORS®, in their capacity as real estate professionals, in association with their real estate businesses, or in their real estate-related activities, shall not harass any person or persons based on race, color, religion, sex, disability, familial status, national origin, sexual orientation, or gender identity. Made a series of recommendations to the Standards of Practice to bring the language in line with the terms of NAR’s 2024 settlement. Approved a motion to make one member of the Executive Committee a commercial practitioner who has served as chair, vice chair or liaison of an NAR commercial-related committee or forum to serve a two-year term and be independent of the 10% commercial representation requirement outlined in the NAR Constitution. Approved a recommendation from the Credentials and Campaign Rules Committee to amend qualifications for president-elect, first vice president and treasurer effective Jan. 1, 2026. Qualifications for top-line officers are now aligned with those already in place for regional vice presidents. Approved recommendations from the Member Accountability Committee related to applications for volunteer leadership and the Statement of Appropriate Event Conduct. The goal of the recommendations is to ensure members found in violation of the NAR Member Code of Conduct are properly disclosed. Award Winners NAR President Kevin Sears announced the 2025 Distinguished Service Award winners James P. Cormier , AHWD, C2EX, of Minneapolis-St. Paul, and Brooke S. Hunt , AHWD, E-PRO, SFR, SRS, C2EX , of Flower Mound, Texas. In addition, the group recognized the winner of the 2024 William R. Magel Award, Anne Marie DeCatsye , CEO of the Canopy REALTOR® Association and Canopy MLS in the Charlotte, N.C., metro area. REALTORS® Relief Foundation During the meeting, REALTORS® Relief Foundation President Greg Hrabcak appealed to board members to make a tax-deductible donation. The fund provides housing assistance to victims in the immediate aftermath of a disaster; 100% of funds donated go to disaster relief. “We’ve had devastating wildfires in California, tornadoes in Missouri and Kentucky and flooding in West Virginia, and we’re still in the first half of this year,” Hrabcak said. Before the meeting ended, directors had donated more than $41,000.
Whether you’re working in Baton Rouge, Shreveport, Lafayette, or anywhere in between, here’s how you can use Homeownership Month to elevate your real estate marketing and better serve your community.
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