ABA Banking Journal reported last night that the SBA has updated its Payroll Protection Program FAQ confirming that PPP “borrowers who attempt to rehire employees that were laid off will not have their loan forgiveness amounts reduced if those employees decline the offer to return to work”.
The exact wording of FAQ #40 is here:
This is huge news for some of my clients who run restaurants, cafes, retail, and other types of businesses where working remotely is not an option, and where working conditions are cramped and staff are unable to maintain 6-foot social distancing. Understandably, some employees are hesitant to return to a job that puts their health and the health of their families and communities at risk, especially if those staff members or their loved ones are immuno-compromised.
There has been a lot of political talk about this situation, criticizing furloughed employees for this choice, but let’s all try to remember that the only folks making more money on unemployment are generally earning less than $45,000 annually — and these are the people we’re asking to put their lives in danger for our economic benefit. It’s not exactly a fair criticism, in my opinion.
That said, it certainly negatively affects the small business owners I serve, and I have been challenged by these dual needs pulling my heart in opposite directions, as I can empathize with both perspectives. The business needs to spend 75% of the PPP funds on payroll, and maintain 75% of the prior full-time-equivalent hours for their staff. So if staff are unwilling to return, then the entire PPP forgiveness is put at-risk.
This new FAQ lifts that burden for employers, which I applaud. It does make it clear that the unemployment benefits for those employees may be in jeopardy as a result, but at least the owner does not have to shoulder the burden of being the bad guy who reports them (at least, not according to this FAQ — state unemployment laws may have other requirements).
Two recommendations for business-owners who receive PPP funds and are challenged by this situation, where former employees do not want to return to a risky work environment because they are making enough on unemployment:
Offer returning staff a hazard-pay bonus to make it worth the risk. Obviously this isn’t an option for those who are immuno-compromised, since no amount of money is worth their life; but for everyone else, consider increasing their pay temporarily with weekly retention bonuses. This will increase company loyalty, help meet the 75% payroll rule for PPP forgiveness, and assist in rebuilding the business. You can easily set up a “Hazard Bonus” payroll item in your payroll software.
Point out to staff that returning to work will leave them additional unused weeks of unemployment pay for future use, if the business ends up having to close again after the PPP funds are exhausted.
Finally, some good news. Awaiting further guidance on PPP forgiveness and will be posting more as I learn more.
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According to Antonio Romanucci, a speaker on today’s Crain’s “Crisis Relief for Businesses” webcast, he has yet to see a single insurance company honor a business interruption claim due to COVID-19 and the resulting stay-at-home orders.
The devil is in the details here, and there are several parts of insurance policies that are at the heart of the discussions:
Does a policy cover “All Risks” against loss or physical damage or is there “Stated Peril” for loss or damage to policies based on certain, covered causes?
Is there coverage for losses due to decisions or directions by a Civil Authority, like the government directed shutdown of non-essential businesses?
Is there a Virus Exclusion that does not cover losses due to viruses or bacteria, which could be general or name specific viruses or bacteria?
Regardless of the language in their policy, business owners should file a claim in writing to determine their insurance company’s response and, if the claim is denied, consider a conversation with a legal expert to have their policy reviewed and consider possible next steps, which could include the filing of a legal complaint to bring in the judicial system to review the insurance contract and declare whether or not coverage is deserved.
Insurance companies have collected billions of dollars in premiums that should first be paid to policyholders to keep those smaller businesses from going bankrupt. If the pandemic leads to critical financial strain on the insurance industry, then those enormous corporations should turn to the federal government for a bailout, very much like what is being given to the airline industry.
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UPDATE 6/10/20: Sec. Carranza indicated today that new EIDL applicants will begin to be accepted next week — they are still working through the queue of previous applicants, but as they get a handle on that, the system will be available again (currently it is only available to farmers). I have a client who applied on April 8th who received their loan this past week, so I can confirm that they really are still in-motion… when you see money suddenly show up in your bank account with “SBA TREAS” in the description, that’s probably it.
As of 11:15 am Central Time, April 27th, this is the news (above) from the SBA website on Economic Injury Disaster Loan (EIDL) funding. To me, it sounds like they’re saying that unlike the PPP, the EIDL did maintain a queue of existing applications. More to come soon — check back on their website regularly.
Gusto recently released a solid, comprehensive write-up on the EIDL with step-by-step instructions on how to apply. Check it out.
I’m also getting a lot of questions about random amounts that are showing up in the accounts of folks who applied for both EIDL and PPP — so here are a few tips:
Remember, the EIDL funding comes straight from the SBA, not a bank, and so the bank feed description will usually read something like “SBA Treas.” Whereas PPP comes from the bank through whom you applied.
Also, EIDL funds tend to be even numbers, whereas PPP funding is more often for odd amounts (and you’ll usually know what this is before the amount arrives).
You will always have to sign for a PPP loan before it is disbursed. Whereas you may receive the EIDL advance with no paperwork beyond the initial application, and no notice ahead-of-time that it will be funded.
Presumably there should be less confusion between these amounts and the IRS Stimulus Checks, as those are for personal accounts, versus EIDL and PPP, which are for business accounts.
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I have a lot of small business clients in retail and services that could use some assistance pivoting their offerings online, and am hoping this webinar can provide a jumping-off point.
Presented by World Business Chicago – Join 37 Oaks Consulting, ChiBizHub, World Business Chicago and City of Chicago Business Affairs & Consumer Protection (BACP) for an informational webinar to help inspire you on ways you can shift, move or elevate your business to an e-commerce model.
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From the Chicago Department of Business Affairs and Consumer Protection, April 27th, 2020:
On Thursday, April 23rd, Governor Pritzker announced an extension of the Illinois Stay at Home Order to the end of May. Under this extension, there will be important modifications to the Stay at Home Order that will come into effect on May 1st. These modifications provide increased flexibility for certain businesses and important new guidelines to protect workers and consumers.
Here is an overview of the changes that will become effective May 1st and will last through the month of May. Please note that these rules are subject to change- please visit www.chicago.gov/coronavirus for updates.
1. NEW Requirement to Wear Face Coverings Effective May 1st, all individuals over the age of two that can medically tolerate face covering will be required to wear a face covering over their nose and mouth when they are:
in a public space and unable to maintain a six-foot social distance; or
in any indoor public space.
2. NEW Categories of Businesses Considered Essential The following businesses will be considered essential and may re-open beginning May 1st:
Animal Grooming Services
Greenhouses, Garden Centers and Nurseries
These businesses will be added to the full list of essential businesses under the previous Stay at Home Order, which can be found on the Frequently Asked Questions tab at www.chicago.gov/coronavirus. All essential businesses must follow the social distancing requirements outlined in number four below.
3. NEW Permissible Activities for Non-Essential Businesses Beginning May 1st, retail stores that are not designated as essential may re-open to fulfill online or telephone orders. These orders must be completed through pick-up outside of the store or through delivery. All non-essential businesses engaged in minimum basic activities such as these must follow the social distancing requirements outlined in number four below.
4. NEW Requirements for all Businesses to Protect Employees and Consumers Effective May 1st, all businesses are required to take the following steps to the greatest extent possible:
Provide employees with face coverings
Require that employees wear face coverings in circumstances where they are unable to maintain a six-foot distance at all times
Where work circumstances require it, provide additional Personal Protective Equipment
Evaluate whether employees are able to work from home
This applies to all essential businesses and non-essential businesses that are engaged in minimum basic operations. These requirements are in addition to existing requirements to designate six-foot distances, have hand sanitizer and sanitizing products available, designate separate operating hours for vulnerable populations and post online whether a facility is open and how best to reach the facility.
5. New Requirements for Retail Businesses to Protect Employees and Consumers In addition to the requirements outlined in number four above, all retail businesses are required to take the following steps to the greatest extent possible beginning on May 1st:
Cap occupancy at 50 percent of store capacity or occupancy limits
Set up store aisles to be one-way where practicable
Communicate with customers through in-store signage, public service announcements and advertisements about the social distancing requirements
Discontinue use of reusable bags
6. NEW Requirements for Manufacturers to Protect EmployeesIn addition to the requirements outlined in number four above, all manufacturing businesses are required to take the following steps to the greatest extent possible beginning on May 1st:
Stagger shifts
Reduce line speeds
Operate only essential lines, while shutting down non-essential lines
Ensure that all spaces where employees may gather, including locker rooms and lunchrooms, allow for social distancing
Downsize to the extent necessary to allow for social distancing
Please be advised BACP has been and will continue to enforce the Stay at Home Order. Citations for businesses violating the order, including the social distancing requirements, can range up to $10,000 per offense. The modifications in the new Stay at Home Order are essential to building on the lifesaving progress our State has made over the last month.
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The popular and problematic Paycheck Protection Program is up and running again starting 10:30 am tomorrow, Monday, April 26th.
But given the number of client emails and texts I’ve received today on the topic, I realized that there is still a lot of confusion about what a small business’s next steps should be. So here are a few urgent reminders:
Apply Today — Do Not Wait Until Tomorrow
The SBA is opening their e-Tran system Monday, April 26th at 10:30 am — that’s when banks and other lenders are able to begin submitting their completed application packages from customers. In other words, don’t wait until tomorrow to apply. Make sure your bank has your information ready-to-submit the moment e-Tran goes live. If you haven’t already applied (or cannot find out the status of your existing application), get your completed information to your (possibly new) chosen lender today. This means pull together all your documentation now and submit it in one package. Do your banker and yourself a favor and avoid delays that will require them to follow up with you for missing information.
Confirm Status of Existing Applications
Because the PPP has gone through so much flux and so many iterations and guidance/ FAQ releases, a lot of early applications seem to have gotten “stuck” — the banks were not prepared for how to communicate with so many customers at-once, so in cases where there was missing documentation, some applications were held up in limbo. Most banks have been working through those piles frantically since the program ran out of money, in order to be ready for the second tranche — but if you have not yet heard from your lender about the status of your application, it’s time to check in with them now. Many banks, including Chase, have (finally) included a link to application status information on the customer landing page (you must sign in first).
If you have access to a real human being, such as a branch manager or loan officer, try reaching out to them if the usual channels aren’t working. I had one client show up in-person one morning when the bank opened — they initially told him they couldn’t assist with PPP issues; then he explained his unique situation, and it turned out they were able to fix the problem. But please remember — I beg you — that these are real people. They are overworked, are sometimes given poor training, do not have enough hours in the day to analyze the constantly-changing guidance thrown at them, and are often being forced to come into an office without sufficient PPE or social-distancing opportunities. They are exhausted, anxious, and yelling at them will not help. It’s not their fault that Congress wrote a sloppy law that allowed multi-million-dollar companies to access money that was theoretically meant for you. Be nice.
Apply With Multiple Lenders If Your Application Has Stalled
There has been a lot of confusion here — the rules still aren’t quite clear. According to many unofficial sources (most of them lenders), you may apply with multiple companies. What the law indicates is that you may not accept more than one loan.
So there’s a lot of complexity here. Obviously, applying with multiple lenders clogs up the system for other applicants. And while multiple applications aren’t against the rules, some banks are claiming that they could result in applications being voided or delayed.
But if not all lenders — and not all staff processing these loans — are created equal, then why should you be penalized because your bank (or more likely, your small business department within your bank) doesn’t have its act together? My advice (unofficial “don’t sue me” advice), at least to my own clients, is that if your bank isn’t communicating with you — if you don’t know the status of your existing application and have no idea if it’s even being moved forward — then by all means reach out to one or more other lenders.
From Brit Morse in a recent article in Inc.: But that doesn’t mean you should only apply at a single lender. The chaos of the program’s roll out along with the fact that different banks have deployed different resources and processes to address the influx of these loans, might necessitate applying at multiple lenders.
Also, for clients using the Gusto payroll platform, they have been offering since almost the beginning to connect its customers with lenders. Go here and then sign in — you’ll be given the option to submit your info.
Cross River Bank – I have had folks reporting good success with them. Divvy – Fintech company that has access to multiple lenders. First Bank Fulton Bank Fundera – I have had folks reporting good success with them. Fintech company that has access to multiple lenders. Funding Circle – Fintech company that has access to multiple lenders. Kabbage – Fintech company that has access to multiple lenders. Solera National Bank Womply – Fintech company that has access to multiple lenders. Zions Bank
If You Need The Money, Apply — Even If You’re Late To The Game
This second round is expected to go quickly, but don’t let that discourage you from applying. Rob Scott, a regional administrator for the SBA, told CNBC that “If someone didn’t qualify or didn’t apply, they should absolutely apply for the second round.” (Of course, this is insensitive blockhead who also said, “Overwhelmingly, the funds have been used for what it has been intended to do,” Scott said. “There are outliers. There are outliers in every program.”)
The SBA did not maintain a queue after money for the first tranche ran out — any application that was in-process was dumped. So when lenders go to the e-Tran system on Monday, they’ll be evenly-matched.
We have no way of knowing how long this disaster will last, and whether there will be a third wave of funding at some point. From Business Journal Daily: “Whether there is a third round of funding – Bank of America has suggested it would take $900 billion in relief to get all small businesses the money they need – will likely be determined closer toward the end of the second round.”
This will give you an opportunity to build a relationship with a lender that may prove helpful in the future in ways you can’t predict.
Forgiveness? Not So Fast.
I keep working on a spreadsheet to help my clients determine how best to spend their PPP funds for maximum forgiveness — and it keeps changing with each morsel of guidance we receive from the Treasury and SBA. For now, just know that for businesses that already received their funds, the SBA is working on developing the guidance for how business owners will prove they retained staff to have their loan forgiven. I’m sure I’ll be posting plenty on that here on my blog in the upcoming weeks.
If this or any other posts on the website were useful to you, and your financial situation permits it, please consider contributing to my tip jar. This allows me to continue to provide free accounting resources to small businesses who do not have the funds available to hire a CPA.
I received a call and email today from a concerned Illinois citizen, trying to bring awareness to what seems like a serious error on the part of the Illinois Department of Employment Security (IDES). I have contacted our State Representative’s office and they are looking into it. I will post an update here when I have one; in the meantime, here is the information I received — just in case you are struggling with the same issue, you can know you’re not alone, and folks are indeed trying to get it addressed. Note: I have not yet vetted this information… it was provided to me via an individual who is not a client.
Summary: The state of Illinois shut down on March 20th, and the CARES Act, including the Federal Pandemic Employment Compensation (FPUC) passed on March 27th. Even before it passed, the official message from the State of Illinois was that there was no different way to apply for the federal aid aside from applying normally for state unemployment. IDES posted on their FPUC FAQ that individuals otherwise eligible for unemployment during the weeks of the program would be eligible for and receive the increased assistance. They also wrote that the additional $600 per week would be active in benefit payments for unemployment certifications (not applications or claims) completed starting April 6th. Then, on April 15th, they retroactively decreed through a PDF that anyone who had any claim for benefits pending or active before March 29th would be denied the FPUC. —
The IDES is not applying the $600 FPUC increase for mandatory COVID-19 economic shutdown to people receiving regular unemployment benefits (in violation of the federal implementation guidelines and the CARES Act).
While the $600 payments cannot be retroactively applied to before the CARES act took effect, it is incorrect to not apply the $600 to later weeks for those with existing claims started prior to March 29th. There is no requirement in CARES FPUC that individuals may not already receive unemployment benefits or forfeit eligibility. In fact, the opposite is true, and the $600 is an increase to existing benefits.
The IDES COVID FAQ also states the correct interpretation in their FPUC FAQ: “Who is eligible to receive FPUC? FPUC is payable to individuals who are otherwise eligible for unemployment benefitsfor weeks of unemployment beginning March 29, 2020 and ending July 31, 2020“ https://www2.illinois.gov/ides/Pages/COVID-FPUC-FAQ.aspx#h2
IDES provides no alternative method to apply for or receive federal assistance beyond applying for normal state unemployment benefits. After certifying for benefits through 4/18, [this claimant] still has not received additional payments from FPUC/CARES, even though the IDES website had indicated that FPUC would be included for eligible recipients with their normal benefits starting April 6th:
“The $600 federal increase is now available! Those claimants certifying beginning April 6 will see the additional supplemental income applied to their weekly benefit amount. This increase is available through the week ending July 25, 2020.” https://www2.illinois.gov/ides/Pages/default.aspx
Due to the fact that [this claimant] has seen no additional $600 materialize, and the IDES changed the wording in their April 15th PDF, it seems they may have mistakenly adjusted the policy to not grant the $600 to recipients in this situation. IDES had not previously stated that claimants had to wait until after March 29 to apply to get FPUC — in fact, they indicated the opposite: that people should apply normally, and once it was enacted and implemented they would start seeing the additional funds.
Those who apply before March 29 are still eligible for benefits for weeks after March 29th, and thus still eligible for FPUC. The date of March 29th is to start $600 payments, not to cut off eligibility. This seems to be a serious error.
(Federal guidelines for the law are copied below for reference.)
CARES FPUC Guidelines: C. Operating Instructions. 1. Eligibility for FPUC. For an individual to receive FPUC, the applicable state must have a signed agreement with the Department. FPUC is payable to individuals who are otherwise entitled under state or federal law to receive regular UC for weeks of unemployment (including Unemployment Compensation for Federal Employees (UCFE)and Unemployment Compensation for Ex-Servicemembers (UCX)). FPUC is also payable to individuals receiving the following unemployment compensation programs: PEUC, PUA, EB, Short-Time Compensation (STC), Trade Readjustment Allowances (TRA), Disaster Unemployment Assistance (DUA), and payments under the Self-Employment Assistance (SEA) program. A number of state laws include provisions extending the potential duration of benefits during periods of high unemployment for individuals in approved training who exhaust benefits, or for a variety of other reasons. Although some state laws call these programs “extended benefits,” the Department uses the term “additional benefits” (AB) to avoid confusion with the Federal-State EB program. FPUC is not payable to individuals receiving AB payments. 2. FPUC Eligibility and Relation to Other Types of Benefit Payments. Individuals receive FPUC payments concurrently with payments under those programs identified above. Refer to UIPL 14-20, Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 –Summary of Key Unemployment Insurance (UI) Provisions and Guidance Regarding Temporary Emergency State Staffing Flexibility, issued April 2, 2020, for additional information on how FPUC interacts with other programs authorized under the CARES Act.States that are unable to immediately pay benefits the week following the execution of the agreement with the Department to operate the program must provide retroactive payments to individuals eligible for FPUC for the weeks they would have been entitled.
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From the American Bankers Association at 8:52 am on April 25th:
With the Small Business Administration reopening its E-Tran system for Paycheck Protection Program applications on Monday morning, SBA last night issued guidance to help borrowers and lenders calculate and document the maximum PPP loan amount a business may be eligible for. The guidance covers several situations about which lenders have sought clarity.
The guidance addresses calculations and documentation requirements for applicants that are:
Self-employed with no employees.
Self-employed with employees.
Self-employed farmers who report income on Schedule F.
Partnerships.
Subchapter S and C corporations.
Nonprofit organizations.
Eligible nonprofit religious organizations, veterans’ organizations and tribal businesses.
Limited liability company owners.
“Borrowers and lenders may rely on the guidance provided in this document as SBA’s interpretation of the CARES Act and of the Paycheck Protection Program Interim Final Rules,” SBA added in the guidance. “The U.S. government will not challenge lender PPP actions that conform to this guidance and to the PPP Interim Final Rules and any subsequent rulemaking in effect at the time.”
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Many of my clients are self-employed (they file Schedule SE to pay payroll taxes on their income tax returns, rather than receiving a W-2 as an employee), and therefore are not required to pay into the state’s unemployment fund at the Illinois Department of Employment Security. This also means that they are not allowed to draw on the unemployment system.
However, with the current pandemic raging, the government recognized that these folks need the same safety net the rest of society can count on, and states were instructed to make benefits available to them.
There were a few problems with that. Although the federal government instructed states to cover self-employed people — this includes sole proprietors who have employees, as well as folks who don’t think of themselves as running a business: gig workers, independent contractors, and those performing odd jobs for a living — it unfortunately did not give states any guidance, budget or other resources for how to make that happen.
First-off, keep in mind that unemployment claims have skyrocketed. In one month, IDES has received more claims than in all of 2019. Staff are overworked, and being asked to come into an office instead of working from home, because data security issues have always required it. Many folks have become sick and had to take time off, or are struggling with childcare issues due to schools being canceled.
Then take into account the fact that most state unemployment computer systems are ancient in terms of technology. Many are actually written in COBOL, a language in wide use in the 1960s. So when these programs break, there aren’t a lot of software developers around who can fix them — to the extent that IBM is actually offering free COBOL classes to computer programmers (even beginners) in hopes they can help out some of these agencies. It’s already hard enough to work with these legacy systems… but reprogramming them to accept an entirely different application, documentation and workflow (self-employed people don’t have paystubs or W-2s to prove income) is a huge overhaul project in itself. (Which they don’t have time to do because claims have skyrocketed, they are overwhelmed, and understaffed.)
Furthermore, the staff working at state unemployment agencies aren’t trained to review this new documentation, or to make calculations as to the amount of benefits to which they’re entitled. Reviewing tax returns is simply not the same as reviewing paystubs and W-2s, and this will take some time — new rules will have to be devised, new procedures created, and then employee training will have to occur… all while a pandemic rages and folks are (see above) overwhelmed and understaffed.
So when I read comments like that of Morgan Ione Yeager from Highland Park, who is “appalled and disgusted” by the delays and claims, “there’s no reason why it needs to be this difficult,” I can’t help but wonder what she knows, about software programming and benefit calculation training while being overwhelmed with an unprecedented number of current claims and working onsite with insufficient protections… that I don’t.
Which is to say — this situation is indeed horrible, and difficult, and sad. But please remember these are human beings trying to make this happen.
Enter some good news. An entirely new system specific to self-employed workers is being written in a period of weeks in order to have things up-and-running as soon as possible, with benefits rolling out around May 11th, reports the Chicago Sun-Times.
In addition to the new system, other “upgrades include: recruiting retired IDES employees to come back to work; boosting IDES’ phone system capacity by 40% plus extending daily call center hours; opening another call center with 200 employees’ and hiring consultants to overhaul and build new IDES platforms.”
In the meantime, I recommend you continue to watch the news and the IDES site — please check it no more than once-a-day, to reduce the load and make it easier for others applying for benefits — and be ready with whatever you have that can support your calculation of your annual income, such as a tax return, 1099-MISC forms you have received for work performed, or a statement print-out of earnings from the company for whom you are a contractor. You may wish, as a former administrative law judge for IDES has recommended, to write a letter with the initial date you stopped receiving income and attempted the unemployment application submission, just to make sure you have backup illustrating you began the process (to me, this seems like it would clog the system up further, but if there’s any concern about your claim not being honored, it seems like a reasonable approach).
For more information on how unemployment benefits vary so widely from state-to-state, check out this great article. The number of complicating factors involved makes apples-to-apples comparisons almost impossible.
And… if you’ve got some free time on your hands and are interested in a career change, don’t forget about those free COBOL classes.
If this or any other posts on the website were useful to you, and your financial situation permits it, please consider contributing to my tip jar. This allows me to continue to provide free accounting resources to small businesses who do not have the funds available to hire a CPA.
