Furloughs raise questions about worker rights

Furloughs and exempt employees
Administrative and professional employees who are exempt from overtime and paid a yearly salary can be furloughed, but there are restrictions on how furloughs can be conducted. (There are few, if any, restrictions on furloughing hourly workers.)

The way the nation’s labor laws are written, an employee who is exempt from overtime and covered under the Fair Labor Standards Act must be paid for a full week of work even if they do not work one or two days during that week.

So, if your employer asks you to work on Monday and Tuesday, but sends you home without pay for the rest of the week, under labor laws the employee could lose his or her exempt status, meaning, the worker would now be eligible for overtime.

Many employers have gotten around this by making their salaried workforce take a full week off at a time.

These restrictions apply only if an employer makes the furloughs mandatory. If your managers ask you to voluntarily take off one day during a week, then the overtime exemption is not jeopardized.

That raises the question of what is “voluntary” in a corporate environment where almost every worker fears being laid off?

“If I can be fired at any time, I suppose that if my employer suggests that I take a break for a month, I am likely to do that, as a job preservation strategy, so as not to force the employer’s hand and make her terminate me,” says Mark Risk, an employment attorney.

“There have to be no adverse consequences to you if you decide to keep working,” adds Brian Dixon, an attorney with employment firm Littler Mendelson.

Furloughs and unemployment benefits
It may sound counterintuitive, but even though you haven’t actually lost your job and you’re just on furlough, there’s a good chance you’re eligible for unemployment.

“The general rule is if you’re laid off for more than one week you can obtain unemployment,” Dixon says.

But almost every state has its own rules on this.

In California, “unemployment insurance benefits are not paid for the first week after a worker loses a job. If the ‘furlough’ lasts more than one week, benefits would kick in,” says Patrick Joyce, a spokesman for the state’s Employment Development Department.

You should file for unemployment benefits immediately, advises Joyce. “If they delay, they will still face an unpaid week — called a ‘waiting period’ in the business — before they receive benefits.”

In Connecticut there is no waiting period, says George Wentworth, director of program policy for that state's Department of Labor. So, if you’re furloughed for a week, you can get a full week of benefits. If you’re furloughed for three days, you probably can get partial benefits. Anything less than that, you’re likely ineligible, he adds.

You should contact the state agency that oversees unemployment insurance where you live to find out what you’re entitled to.

Furloughs and doing work
When you are furloughed, that means you do not work. It’s as simple as that. If your manager expects you to work when you’re out on furlough, whether you are salaried or hourly, you must be paid for your work.

“Even if you just check your BlackBerry,” say Griffith.

And there should be strict policies in place, advises Michael Elkins, a labor and employment attorney with Fowler White Burnett. “Bold, all-cap letters to employees that say they are not to check work e-mail, voice mail, not anything related to work,” he says.

Bottom line: Furloughs shouldn’t be an excuse for not paying workers what they’re owed. However, they may continue to be a necessary evil.

“Furloughs are an unfortunate consequence of a lot of bad decisions, greed and poor judgment that are hurting a lot of people,” says Myrtle Bell, associate professor of management at the University of Texas at Arlington. “Some people really live paycheck to paycheck, and these furloughs are very difficult for them. However, the bottom line is that if furloughs help employers weather the storm and help employees avoid being laid off, I think they are useful.”

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