Legal Considerations for Employee Retention Credit

In the wake of economic downturns, governments often introduce measures to stabilize the economy and support businesses. One such measure introduced during the COVID-19 pandemic by the U.S. government was the Employee Retention Credit (ERC). While it provided a lifeline for many struggling businesses, navigating its legal landscape was no simple task. In this article, we will explore the legal considerations surrounding the ERC, ensuring businesses can utilize this credit without running afoul of regulations.

Introduction: What is the Employee Retention Credit?

The Employee Retention Credit was introduced under the CARES Act as a refundable payroll tax credit. This incentive was designed to encourage businesses to retain employees during times when operations might be curtailed due to economic hardships or government mandates.

Eligibility Criteria: Who Can Claim the ERC?

Legally, not all businesses automatically qualify for the ERC. The eligibility was primarily based on:

  • Business Operations: If your business was either fully or partially suspended due to government orders related to COVID-19.
  • Revenue Decline: If the business witnessed a significant decline in gross receipts – a drop of 50% or more in a quarter, compared to the same quarter in the previous year.

Legal Restrictions on Dual Benefits

One of the primary legal considerations was the interaction between the ERC and the Paycheck Protection Program (PPP). The CARES Act initially prohibited businesses from benefiting from both simultaneously. It was legally imperative for businesses to choose between the two, as claiming both could lead to legal repercussions.

Calculating the Credit: Legal Precision Required

The credit amount was 50% of qualifying wages paid up to $10,000 per employee, translating to a maximum of $5,000 credit per employee. However:

  • Only wages paid after March 12, 2020, and before January 1, 2021, were considered.
  • For businesses with more than 100 full-time employees, only the wages of employees not providing services due to COVID-19-related reasons could be included in the calculation.

Mistakes in these calculations, especially if they seemed deliberate, could draw scrutiny and legal consequences.

Reporting Requirements: The Importance of Record-Keeping

Maintaining comprehensive records was not just an operational necessity but a legal one. To substantiate any ERC claims, businesses were required to keep:

  • Detailed payroll records.
  • Documentation showing the impact of COVID-19 on operations.
  • Records of any government-mandated closures.

Failure to maintain these records could result in a denial of the credit or legal penalties if discrepancies were found.

Addressing Overclaims: Legal Remedies and Consequences

If a business realized they claimed more ERC than they were entitled to, they were required to report and repay the excess amount. Overclaims, especially if not addressed promptly, could result in penalties and interest.

Interactions with Other Credits and Relief Measures

Businesses had to be wary of interactions between the ERC and other tax credits, such as:

  • Work Opportunity Tax Credit (WOTC)
  • Paid Family and Medical Leave Credit

Legally, a business couldn’t claim the ERC on wages used to calculate other credits. This “double-dipping” could lead to legal complications.

Continuous Monitoring of Legislative Changes

The legal landscape around the ERC was not static. Subsequent legislation, such as the Taxpayer Certainty and Disaster Tax Relief Act of 2020, introduced changes to the ERC. These included:

  • Extending the credit to June 30, 2021.
  • Increasing the credit rate from 50% to 70% of qualifying wages.
  • Modifying the gross receipts decline threshold to 20% (previously 50%).

Businesses were legally obligated to stay updated and adhere to these evolving guidelines.

Considerations for Rehired Employees

Legal nuances also surrounded the treatment of rehired employees. An employee laid off and later rehired could impact the ERC claim. Missteps here could lead to incorrect credit amounts, demanding rectifications and potential legal scrutiny.

Seeking Legal and Professional Guidance

Given the complexities surrounding the ERC, it was wise for businesses to seek expert legal counsel. Lawyers specializing in tax law or financial professionals well-versed in the CARES Act and its provisions were invaluable assets.


The Employee Retention Credit served as a much-needed support mechanism for businesses during the turbulent economic period caused by the COVID-19 pandemic. However, like most tax credits, it came with its legal intricacies. By understanding these nuances, businesses could not only maximize their benefits from the ERC but also remain compliant, ensuring they did not inadvertently step into legal pitfalls. Proper guidance, vigilance, and adherence to the rules were the keys to navigating the ERC’s legal landscape effectively.


1. What is the Employee Retention Credit (ERC)?
The ERC is a refundable payroll tax credit introduced under the CARES Act to incentivize businesses to retain employees during economic hardships or government-imposed operations curtailments due to COVID-19.

2. Can a business benefit from both the ERC and the Paycheck Protection Program (PPP)?
Initially, businesses couldn’t claim both. However, legislative changes may have introduced nuances to this, so it’s crucial to consult updated resources or professionals.

3. How is the ERC calculated?
The credit is a percentage (initially 50%, later increased to 70%) of qualifying wages paid up to $10,000 per employee.

4. Are there penalties for overclaiming the ERC?
Yes, businesses that claim more than they’re entitled to must report and repay the excess. Failure to address overclaims can lead to penalties and interest.

5. How long should businesses maintain records related to the ERC?
While there isn’t a fixed period specified in the CARES Act, it’s a good rule of thumb to maintain records for at least four years. Consultation with a tax professional can provide guidance tailored to individual business circumstances.

6. Do rehire employees impact the ERC claim?
Yes, rehiring employees might impact the amount you can claim under the ERC. It’s essential to understand the nuances to ensure correct credit amounts.


  • IRS’s Official ERC Guide: The IRS provides comprehensive details on the ERC, including eligibility, calculation, and legal guidelines.
    Link to IRS ERC Page
  • U.S. Department of Treasury: Offers broader insights into financial relief measures introduced during the pandemic, including those interacting with the ERC.
    Link to the U.S. Department of Treasury
  • Tax Law Firms: Engaging with a tax law firm or hiring a tax attorney can provide businesses with detailed, personalized guidance on navigating the legal intricacies of the ERC.
  • Tax Software Guides: Solutions like TurboTax, H&R Block, and others often provide updated guides or tools tailored to tax credits like the ERC.
  • Legal Databases: Platforms like LexisNexis or Westlaw can provide access to case law, legal articles, and other resources related to the ERC and associated legal considerations.
  • Accounting Associations: Organizations like the AICPA (American Institute of Certified Public Accountants) offer resources and updates related to accounting practices, which may include ERC specifics.
    Link to AICPA

Utilizing these resources and staying updated ensures businesses remain compliant while maximizing the benefits from the Employee Retention Credit.


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