Answering Frequently Asked Questions about Furloughs
The ongoing COVID-19 pandemic has introduced unprecedented disruptions in how we live our lives and conduct business. Numerous industries have been forced to heavily modify operations, reduce capacity, or shut down entirely to mitigate the spread of the infectious virus. These seismic changes and resulting reductions of business have resulted in employers furloughing large portions of their staff, especially in industries where businesses are not permitted to conduct any in-person business at all.
Being furloughed can be scary and frustrating, especially in such a turbulent moment. While it is generally better than being laid off outright, an extended furlough still means you will be going without pay in an especially turbulent economic moment. As an employee, you may have questions about your rights, especially if you continue to receive frequent communications from your boss. Below, we cover your rights as a furloughed worker.
What Is a Furlough?
A furlough is a mandatory and theoretically temporary leave of absence that includes a suspension of pay. Employers can be forced to initiate furloughs when they do not have the means to continue to pay their full roster of employees under current economic conditions. If in-person facilities are mandated to remain closed for the duration of the pandemic, for example, that business may be forced to furlough its workforce due to a lack of income.
Some might confuse furloughs with layoffs, and on the surface, they might seem similar. Both typically involve large swaths of workers losing their paychecks. However, a layoff terminates and severs the relationship between the employer and the employee. When someone is laid off, the action is considered more permanent, with no expectation that the terminated employee will be later asked back.
Furloughs are intended to only be temporary. In the case of mass furloughs resulting from the pandemic, it is important to remember that COVID-19 will not disrupt businesses forever. Eventually, the pandemic will end, life will return to normal, and regular commerce will resume. At this point, many businesses hope to summon their furloughed employees back to work.
How Long Does a Furlough Last?
Unfortunately, furloughs can be as brief or as lengthy as conditions demand. Many businesses hoped to end early pandemic-related furloughs by the end of summer 2020, but recurring waves of infections resulted in extended and even expanded furloughs as caseloads worsened and new restrictions were introduced.
Being furloughed versus being laid off generally means an employee is valued by their employer. As such, management will typically try and keep employees appraised of new developments and when they expect to end furloughs and resume work. However, these promises or estimates are not legally binding. This means that your boss might vow to return you to work by a stated deadline but will face no penalty should they fail or choose not to ultimately do so.
Can a Furlough Turn into a Layoff?
In theory, a furlough can last indefinitely. Employers have an incentive to furlough employees versus lay them off if they do intend to return them to work, as hiring and training new employees is typically most expensive and resource-consuming than summoning back workers with existing familiarity and skills.
Still, if it becomes clear that poor economic conditions will continue for a prolonged period or could even initiate radical transformations for the future of the business, an employer may decide to lay off furloughed employees. Employers are within their legal rights to initiate layoffs of furloughed workforces so long as they are otherwise lawfully conducted.
Do I Keep My Benefits During a Furlough?
As a show of good faith, many employers will continue to voluntarily maintain health and life insurance benefits for furloughed employees. Some employment agreements have a provision requiring that these benefits be maintained in the event of a furlough. If you belong to a union, similar requirements may be included in your bargaining agreement.
Unfortunately, employers are not strictly required to maintain benefits for furloughed workers. Many will do so to avoid bad press, keep up workforce morale, and to incentivize employees to avoid seeking other jobs (a practice we will discuss more below). You should carefully review your employment or union agreement to ensure your boss is honoring any terms that mandate continuity of coverage or benefits during a furlough scenario.
Do Discrimination Laws Apply To Furloughs?
Yes. Employers cannot discriminate in how they decide who will be furloughed or who will be summoned back to work. As a reminder, employers may not discriminate against anyone on the basis of race, gender identity, sexual orientation, religion, age, or familial status.
You may be familiar with scenarios where employers will use mass layoffs to covertly engage in discriminatory behavior. This is accomplished by using unfavorable economic conditions as a justification for eliminating employees due to their age, sexual orientation, pregnancy status, or some other factor protected by discrimination laws.
The same rules governing layoffs also apply to furloughs. An employer must be objective in how it determines who it furloughs and cannot make decisions based on discriminatory prejudices or calculations. In the case of the pandemic, this means that a company cannot, for example, exclusively furlough older employees who may be at higher risk for COVID-19 complications, even if the move was well-intentioned.
An employer also cannot discriminate in choosing who returns from furlough as conditions improve. Using the previous example, a company cannot exclusively ask younger employees to return to work first ahead of older employees if age is the factor driving the decision.
If you believe your furlough may have been the result of discriminatory behavior, you should immediately get in touch with an employment lawyer. Proving discrimination in these instances can be challenging, but an experienced attorney can assess the available facts and help determine if you have a case.
Do I Have To Work while Furloughed?
No. Being furloughed means you must cease all work for the company. While you are still technically an employee, you cannot be asked to work without pay.
This does not necessarily mean that your boss cannot ask you to do work during your furlough. It does mean that the company is required to pay you for your time. The amount that you are required to be paid depends on whether you are a salaried or hourly employee.
If a salaried employee performs any work-related action while furloughed, they must be paid for the full week at their current rate, regardless of how much work was actually done. Even answering a single work-related phone call triggers this payment obligation. For example, if you are salaried and answer a handful of emails on any given morning, you must be paid for a full week as if you had worked 5 full days.
Hourly employees operate under slightly less generous terms. If they perform any job responsibilities while furloughed, they must be paid for the specific amount of time they worked at their current rate.
To avoid accidentally creating situations where employees inadvertently do work that requires payment, many companies will prevent workers from accessing their company equipment or online accounts for the duration of the furlough. While this might feel punitive to an employee, it also helps set the appropriate boundary that you will not be expected to do any work while furloughed.
Either way, your boss cannot mandate that you work for free during a furlough. Some employers may attempt to pressure or intimidate furloughed employees into doing work “under the table.” The implication here is that those who do free work will be prioritized for being summoned back to work or that those who refuse may be laid off. This practice is completely unlawful, and if you have been asked to do free work or performed work without pay during a furlough, you may very well be entitled to compensation.
Can I File for Unemployment when Furloughed?
Yes, if you were furloughed as a result of the COVID-19 pandemic. The United States Department of Labor has clarified that furloughed employees can apply for unemployment benefits. These monetary payouts should hopefully help you bridge the gap until your full employment is restored.
Be careful when filing for unemployment benefits if your employer has promised backpay for when you return from furlough. Should you receive retroactive compensation, you may be required to pay back some or all of the unemployment benefits you received.
Can I Seek Other Jobs while Furloughed?
Yes. Though you are still classified as an employee when furloughed from a company, that does not mean you are forbidden from seeking other employment opportunities that have the ability to pay you now. In fact, this is an inherent risk of furloughing: Companies risk losing their best employees to other jobs or even competitors if furloughs last too long.
You have total freedom in pursuing alternate means of permanent employment. Should you find that another company that is able to give you a full-team job, you are under no obligation to give your previous employer notice, even if they have continued to pay for company insurance policies or benefits.
Things can get slightly trickier with temporary jobs. Some furloughed workers may attempt to find temporary work, or “gap work,” to maintain some level of income before their permanent position is restored.
Again, you are still an “employee” of your original company while furloughed, so if you accept temporary work, you are in theory being simultaneously employed by two distinct companies. This may run afoul of company guidelines forbidding second jobs, especially if the temporary work is in a similar field. This problem does not occur with a change in full-time positions, as an employee terminates their relationship with the original employer when accepting the alternate full-time position.
Carefully review your employment agreement if you are hoping to find temporary work during a furlough. Employers have historically been free to enforce clauses that restrict multiple jobs, even when an employee is furloughed.
We Can Help You with Furlough Problems
It can be easy to feel vulnerable and powerless when you are furloughed, especially if you value your job and want to eventually return to work. However, you still have rights as a furloughed employee, and our employment attorney at Marder Employment Law can help hold employers acting in bad faith accountable. Whether you believe you believe you were discriminated against in the furlough process or asked to do free work, our legal team is ready to help you explore your legal options.
We have over 25 years of legal experience helping employees defend their rights. Call (888) 796-4010 or contact us online to schedule a free initial consultation.