COVID-19 Job Loss

How to tell if you’ve lost your job when you are “laid off” in this pandemic.

Employers during the pandemic are using fuzzy words to describe layoffs, calling them “temporary” or “furloughs.” But these words have no clear, legal meaning. They give no firm indication of when, or if, you’ll ever go back to work. Employers may prefer saying: “You are furloughed” instead of “You are permanently terminated.” But this leaves the employee hanging, stressed and confused as to what to do next. Employees may be afraid to do anything to jeopardize their being recalled – even filing for unemployment insurance. They may hesitate to file a WARN Act claim. That is unfortunate, because that law’s purpose is to provide notice that avoids confusion. Employees are supposed to be told in advance what is going to happen to them under that law and be given up to 60 days’ backpay and benefits if 60 days’ notice is not given.

Under the WARN Act, if an employer realistically has a plan to restart, then great. It usually will inform employees the layoff will end at a certain time. But, if no dates are mentioned, that suggests the employer has no realistic expectation of when a recall may happen. The employer may be dangling terms such as “temporary” or “furlough” around, just to keep employees frozen in limbo. That may suit the employer. It preserves the workforce intact, ready for later rehire. It does not help the employee, however, who needs clear, truthful information, to plan and seize every opportunity to make a living. Employees should be entitled to take advantage of unemployment insurance without guess work. They should be able to take advantage of the laws that protect abruptly terminated employees, including the WARN Act.

If you were let go in a “furlough” or “temporary layoff,” where does that leave you under the WARN Acts?

· If you work in California.

The test is easy. If you are let go from work for more than two weeks without pay, and you did not receive advanced written WARN notice, you may be entitled to 60 days’ pay and benefits, assuming your site is covered by California WARN. Raisner Roupinian is here to guide you.

For those outside of California, let’s take a closer look at your “temporary” layoff or “furlough” to see whether you have, indeed, suffered a job loss and have a WARN claim.

· What if I am “furloughed” with the date of return to work stated?

If the notice says something similar to “furloughed until the end the month” or “for 90 days” or that you are expected to be recalled on or by a date within the next six months, you are likely in a temporary layoff with no WARN Act rights – but you should verify that with an attorney. If you are not reinstated by that date, then it would be advisable to speak with an attorney because you may have a WARN claim.

· What about getting unemployment insurance during a temporary layoff?

If your wages cease, and the notice expressly states that you may seek unemployment insurance, then you will likely be eligible to receive it. If it does not state anything about unemployment insurance, then you should seek guidance from your state agency. If wages do not cease, you are probably still employed – even though you are not being called in to do work.

· What if I am “furloughed” without a firm date of return?

Many notices are vague. They say you are “furloughed until further notice” or “temporarily.” Words such as “we hope to recall you soon” or in the “near future,” sound hopeful but create maximum flexibility for your employer, and maximum uncertainly for you. Here, we must read on and carefully look at all the circumstances. Context will be important. To determine whether you have lost your job and can take steps to receive WARN back pay for lack of notice will depend on whether or not you have a “reasonable expectation of recall.”

· What is a “reasonable expectation of recall”?

In most courts around the country the “furlough’ or “temporary layoff” will be deemed to be a “permanent” or “temporary” based on whether the employees are given a reasonable expectation of recall. Courts will consider the employer’s communications (as well as whether wages and benefits ceased). It may also depend on the employer’s policies and practices, industry standards and other factors. For example, if it is a seasonal or recurring break that lasts a few weeks, that would probably be temporary – because there is a reasonable expectation of recall. If there is no pattern, and there is no sense as to when the break will end, then it probably will be considered a permanent termination of your employment.

In other words, the court will determine your status based on what your reasonable understanding of the message was – you and your reasonable co-workers. If you have no reasonable expectations of being recalled, then the kid-glove words of “furlough” or “temporary layoff,” that suggest a possible rehire that may hopefully, wishfully occur in the future – will not control. For all practical purposes, you probably were terminated the day your layoff started. You may then be entitled to WARN Act pay of up to 60 days and benefits. You may also be eligible for payment of your unpaid vacation or PTO. You may be entitled to other penalties as well. You – or someone in your group – should speak to an attorney. Raisner Roupinian LLP can represent you and will speak to you at no charge. Simply complete the confidential message form below.