Cheers to a fresh start in the new year: What employers need to know for 2021

The leftover turkey is gone, holiday decorations are going up, and the year that seemed like it would never end is finally winding down. Like so many other things in 2020, employers are being forced to forgo their annual holiday parties for the health and safety of their employees. But fear not! There is still fun to be had.

As New Year’s Eve approaches without the promise (or threat) of alcohol-induced party shenanigans, we offer five cocktail-themed legal issues for employers to keep in mind as they ring in the New Year.

Eggnog with FFCRA sprinkles: Few drinks evoke the holiday season better than eggnog. Like eggnog, the Families First Coronavirus Response Act (FFCRA) was tasty in December but will leave a bad taste in your mouth on Jan. 1, 2021.

That is because the emergency paid sick leave and expanded family and medical leave benefits provided by the FFCRA, which provided eligible employees to up to two weeks of paid sick leave and up to 12 weeks of expanded FMLA leave for certain qualifying reasons related to COVID-19, are set to expire on Dec. 31.

Remember that employees cannot “cash out” any unused leave. Employees who are out on FFCRA leave in late December should be advised that their leave will expire on Jan. 1. Unless and until Congress decides to extend the FFCRA or provide some other benefit, FFCRA leave benefits end in 2021.

Old fashioned bourbon and new DOL independent contractor regulations: From hipster speakeasies to social media influencers, many mixologists have their own recipes for the classic Old Fashioned cocktail. Similarly, authorities have used a plethora of different legal factors to determine whether a worker is properly classified as an independent contractor for the purposes of determining the applicability of minimum wage and overtime wage requirements under the Fair Labor Standards Act.

This is likely to change in the new year. The U.S. Department of Labor has proposed to codify a five-factor test to give employers more certainty about whether a worker is an independent contractor.

Those factors include the nature and degree of the employer’s control over the work, the worker’s opportunity for profit or loss, and the amount of skill required in the work. If you are empowering your workers to create their own recipes, you may be able to classify them as independent contractors. Whether you spruce up your cocktail with a smoked sprig of locally grown rosemary or you handcraft artisanal ice cubes, the classic recipe for independent contractor analysis is likely to become more uniform next year.

Moscow Mules and cybersecurity: Unlike the fizzy and fun Moscow Mule, digital safety is not something to take lightly. As if businesses didn’t have enough to worry about, cyberattacks have skyrocketed during 2020. The National Security Agency recently cautioned that Russian hackers are targeting remote work platforms.

The huge increase in employees working from home due to the pandemic offers cybercriminals exponentially more threat vectors that can be utilized in attacks on employers. Your vodka might be from Russia with love, but it is essential for companies to soberly and proactively assess security gaps, consider appropriate insurance needs, and adequately back up their data.

Mystery punch: The new year will bring a new administration in the federal government. Like any new administration, President-elect Joe Biden will likely seek to change course on a number of policies implemented by the outgoing administration over the last four years. Details on any specific changes are light at the moment, but it is safe to say that this mystery punch has the potential to shake things up.

Whatever your drink of choice on New Year’s Eve, be sure to keep an eye on these issues in 2021. Happy New Year!

Michael Kantor, a partner with Weiss Serota Helfman Cole & Bierman, represents local governments and corporate clients in labor and employment litigation and commercial litigation. 

Brooke Ehrlich, a partner with the firm, handles labor and employment litigation, commercial litigation, and appellate matters.