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Can My Boss Make Me Work If I Am Furloughed?

How COVID-19 Has Led to Unprecedented Furloughs

As the COVID-19 pandemic continues to spread throughout the United States, many states have maintained shutdown orders for certain business sectors or instituted new ones. Other industries that have been permitted to stay open have nonetheless trimmed their active workforces due to decreased demand. The result is an unprecedented level of employees throughout the country being furloughed from their jobs.

Because a furlough is theoretically temporary, many employees expect to return to their places of employment when pandemic-related conditions improve. As a result, there is sometimes an inherent desire to stay in the good graces of your employer, even though you are not actively working. Programs can develop, however, when your boss reaches out and asks you to perform some or all of your job responsibilities, even though you are not actively employed.

Workers might understandably feel pressured to comply with requests from their bosses, especially as furlough periods are extended and layoffs occur at some companies. Those who are “team players” may avoid losing their healthcare benefits and protect their job once normal business can resume. However, it is critical that workers understand their rights as furloughed employees. Below, we review the legality of your employer asking you to do work while furloughed as well as the consequences your boss could face by mandating “free work.”

The Difference Between Furloughs and Layoffs

Furloughs and layoffs may seem similar on the surface, but they have vastly different implications for your relationship with your employer. A layoff is a complete severing of the employee from the company. A laid off worker is dismissed without any expectation that the affected employee will ever be hired back and loses all company benefits.

A furloughed worker is generally given an idea on when they can “return” to work. This typically revolves around economic or other outside conditions improving. For many companies in 2020, furloughs are expected to end when the pandemic subsides, and normal business operations resume. Furloughed workers also typically maintain company benefits, including health and life insurance.

Instituting furloughs versus layoffs is also generally easier for a business. Furloughed workers can be summoned back to work fairly efficiently, whereas any workers that are laid off must be formally hired, trained, and replaced.

No-Work Rule on Furlough

A furlough is instituted when an employer wants you to remain an employee but does not have the current ability to pay you. A furloughed employee cannot work for the duration of their furlough without being fairly compensated.

It is unlawful for employers to require that their employees do any work while under furlough. In fact, employees are subject to a “no work” rule when furloughed. Should a furloughed employee do any amount of work, even unintentionally, they must be adequately paid for their time.

Any amount of “work,” no matter how brief or inconsequential, triggers the “no work” rule. Things as simple as fielding work-related phone calls or emails or tidying up an office space is considered “work.”

Furlough and Salary vs Hourly Employees

If you are a salaried employee and conduct any amount of work, you must be paid for the entire day at their current salary, regardless of how long they actually worked. If you are an hourly employee, you must be compensated for the full amount of time in which you worked.

For example, say you are a salaried employee who answered emails for 10 minutes on Monday. You then took a 30-minute, work-related call on Tuesday. Your boss asked if you could run into the office and grab an important document on Wednesday. Because you did “work” on 3 discrete days, you must be paid for the equivalent of your salary for the entirety of those 3 days – even if each task only took a few minutes each.

Things are a bit simpler for hourly employees. If you are asked to come in and do some administrative work for 5 hours, you must be paid for the 5 hours in which you conducted the work at your current rate.

Understanding Your Rights as a Furloughed Employee

Smart employers will restrict furloughed employees’ access to company accounts and office spaces. This clears up any misconceptions that employees will be expected to continue working during their furlough, and it also prevents a scenario where well-meaning workers perform job responsibilities and inadvertently trigger legally required payment.

Other times, however, an employer will pressure an employee into doing work despite their furlough. This practice is illegal unless an employee is being paid pursuant to the terms discussed above.

You have the right to refuse your boss’s requests to do free work while furloughed. If you do perform any work, you also have the right to immediately demand legally mandated payment, regardless of any conversations you might have had with your boss about deferred payment or not being paid at all. If your employer refuses to pay or attempts to retaliate against you for exercising your rights, you may need to consider pursuing legal action.

You have other important rights as a furloughed employee. You have the right to seek out alternate means of employment during your furlough, even if you have a set return date.

Some consider taking temporary jobs to cover the length of the furlough, but note that employment agreements sometimes have stipulations restricting the taking of second jobs, especially if they are in similar industries. Employers can generally enforce these types of clauses during a furlough. You can still pursue and accept a different job, but your original employer may be within their rights to terminate your employment as a result.

We Can Help You Seek Compensation for “Free Work”

If your boss is demanding that you do free work during your furlough, you may be entitled to compensation. We understand the pressures of wanting to protect your job during the pandemic, but it is important that you avoid being exploited and hold unscrupulous companies accountable for their actions. Our employment attorneys at Levine & Blit, PLLC are committed to helping workers exercise their rights and can help you get paid for what you are owed.

If you or someone you know has been doing work while furloughed, do not wait to call (212) 967-3000 or contact us online. We offer free initial Evaluation.

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