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Furloughed employee rights

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oaklee

Member
What is the name of your state? NY
My wife was told (March 20th) that she was being laid off starting that day and would have to take time unpaid or use vacation/sick time. She was told (verbal) that they were hoping it would be for 3 weeks.
She decided to use her vacation and sick time until the new bill was passed increasing unemployment benifits. She called her employer today to get some sort of documentation stating that she was being laid off due to covid-19(she still has not received any documentation)Her employer promptly corrected her and stated that she was being furloughed and will be expected to return at some point.
Does she have any say in when she is expected to return?
Her contract states that neither herself or her employer can terminate employment unless 60 days notice has been given. Does this mean she can actively search for, and take other employment opportunities?

Thank you for any advice
 


commentator

Senior Member
She should have signed up.immediately for benefits. Lord knows it will be a long time before anyone gets paid in such an over loaded system as we have right now. She is not required to obtain or submit proof of her separation. Furloughed, laid off, doesn't matter what you call it, if she is off work through no fault of her own and is not being paid by the employer, she needs to file for unemployment now, let the department figure out what to do about extra benefits, changes in the laws, confirming separation information.
If the employer calls her back to work, she will have to return to work or lose her unemployment eligibility.
 

oaklee

Member
Thank you for the reply. While I agree that it is a pain to get through to process unemployment and it may be delayed for a while(we have spend hours and hours trying to fill out the forms online, and get through via phone), that is not our concern. My concern is on what rights she has as an employee returning to work. They chose to lay her off, with no notice, because they did not have enough work (patients) for her. Now providers in her office are starting to be quarantined do to an employee testing positive for covid-19.
We have lost our daycare slots due to her losing her job, and they will not guarantee that she goes back on a full time basis. She has some major concerns with their PPE and concerns about her potential high risk of exposure.
If she finds a new job while on furlough, does she have to give her employer the 60 days notice stated in her contract?
Can she go back on her terms? IE when schools are back in session or we find acceptable daycare?
 

cbg

I'm a Northern Girl
When she showed her contract to an attorney in your state who could read the entire document and asked him these questions, what did that attorney say?
 

HighwayMan

Super Secret Senior Member
If she's concerned about a breach of her contract she should sit down for a consultation with a local labor law attorney to review the contract and then take it from there.
 

oaklee

Member
Thanks. We have been unable to get responses from local attorneys at this time(which is why I am on here). It is a very difficult time for everyone, and people are swamped and backlogged with work.
We have never been through a layoff furlough, or unemployment of any kind so this is all new for us. But with how they have treated their employees and her specifically through this crisis, it seems unfair that they can deem her unessential, then back to essential when they see fit. Our first choice would have been expanded paid family leave, but they said they will not allow her to do that.
 

commentator

Senior Member
It is always the right of the employer to set the days, hours, and shift assignments of their employees based upon the needs of the business. After all, if they can't stay in business, there is no job.. So "going back on her terms" are beside the point. No, they can certainly call her back, offer her whatever they want to offer her, and in this current situation, these days and times, I would strongly suspect her hiring contract isn't anything that is going to make a whole lot of difference at this point. The reality is, this employer may not even have a job to call her back to or a business for her to work in or be recalled to. And where I am, I suspect we will all be in another place in this country entirely before you'd ever be able to hire an attorney and take them to court even if they have actually violated the terms of an employment contract.

Unemployment insurance is the vehicle we have chosen in this country at the present time to provide economic relief, not the courts demanding that the business do what you'd prefer in terms of releasing employees. She needs to persist and get signed up on this as I said, very quickly, not trying to put it off until later or anything of this type.

By the way, this is worrying far out in the future, IMHO, but if she finds another job while she is on furlough, laid off, whatever, she does not need to do anything but take it, and when and IF she is offered a job back with her previous employer, she doesn't have to go back to them and work out a notice. I strongly suspect nobody but nobody is going to be sued for anything like not giving 60 days notice in the world of our futures and honestly probably never happened in the past either.
 
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adjusterjack

Senior Member
Unfair is not illegal. Your wife should do whatever it takes to survive. That means going on unemployment and looking for another job.

Civilization is collapsing amid chaos.

A lot of things will be forgiven or easily defended, including unavoidable breaches of contracts.
 

oaklee

Member
Thanks. I understand. We have no problem with her collecting unemployment and looking for a new job, even before the 600$ a week increase, we were ok with it(we were recently able to get her form submitted on the unemployment website so she is good to go on that end). I am also on hold for over an hour with the NYS department of labor.

If they offer for her to come back, does she have to accept it? If they say we want you back on the end of april, can she say she cant come back until middle of may. I understand that they could terminate her employment at that time, but can she still be eligible for unemployment?

She has a very in demand and sought after skill set with lots of job prospects. So we are not worried about her finding new employment, just will she be able to collect unemployment while she searches for the new position.
 

commentator

Senior Member
The thing is, yes, if you are separated from an employer, your unemployment insurance is based on their payroll taxes that they've paid in and causes their unemployment tax rates to be raised. So most employers (in most ordinary times) are not just delighted for you to receive benefits. And if your wife is receiving unemployment insurance based on her separation from xyz company, she probably will be, for a while at least, considered "job attached" and will not be required to be making job searches, although she must still certify each week that she is able, available and actively seeking work. And that she is anticipating recall to xyz is sufficient to keep her from being made to do work searches at the present time. BUT, if they call her back, and she does not accept (because of child care, or because she doesn't want the specific shift she is being offered, or whatever personal reason) then they will doubtless report that she has refused recall. And since each weekly certification requires her to say if she has been offered a job, and failing to report that would be to commit fraud, she will report honestly and her failure to return to work will most likely end her benefits.

Remember how upset the 3 congresspersons were about this huge bonus being attached to weekly unemployment benefits? How they complained that this would cause people to not want to go back to work, would "disincentivise" them from wanting to work instead of drawing benefits? Well, this is why they don't have to worry about this.

If your separating employer calls you back and you don't go, you will most likely very probably lose your benefits. The unemployment insurance program is not a welfare or needs based program. They expect you to be available to go back to work for your previous employer, and they absolutely do not care about your personal situation, whether you want to stay home with your kids, are without a method of transportation to work, have lost your child care, must have first shift for family reasons, whatever.

My best advice to you is not to sit around and worry and ask and try to figure out every possible alternative and way things might happen. It's futile at the present and I bet you don't have much luck getting through the department of labor, and even if you do, there are no binding absolute answers about much of anything right now.
 
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oaklee

Member
Thank you. This is a big learning process for us. We did get confirmation (in writing) that she is NOT being furloughed, and that she is being laid off temporarily(no recall date). It also states in her contract (there is no layoff clause, or layoff policy, we asked) that neither the employer or the employee will terminate employment without 60 days notice. The employer reserves the right to terminate the employee immediately should the employee be convicted of a felony. I have read the entire contract, it is not that big, and there is no mention of furlough, layoff, etc.
 

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