Your company has put you on furlough, a fancy word meaning “mandated leave without pay.” Many people in Massachusetts are in this position as a result of the COVID-19 emergency because non-essential businesses are closed and not all work can be done remotely. What does a furlough mean for you regarding your employment, and what are your rights? The following information clarifies your rights as an at-will employee including protections against discrimination, the right to be paid, the right to unemployment benefits, and the right to seek alternate employment.

1) You are Protectioned from Discrimination

First, you are still an employee. As an employee, you retain the same rights you have under normal circumstances, including protection against discrimination on the basis of race, religion, sex, gender, disability, or other protected classes. You have these protections under Massachusetts state law and federal law.

Under Massachusetts law (M.G.L. c.151b § 4), an employer is prohibited from discrimination against an employee on the basis of race, color, religious creed, national origin, sex, gender identity, sexual orientation, genetic information, or pregnancy. The law protects against discriminatory practices in hiring, promotions, and any other aspects of employment. It also protects against retaliation for exercising your rights. Accordingly, if you do complain internally to a manager or HR, or file a discrimination claim with the Massachusetts Commission Against Discrimination, your employer cannot retaliate against you by terminating you or taking other adverse actions in response to your decision to exercise your rights.

Massachusetts employees also have protections against discrimination under federal law. Federal laws including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). These federal laws protect against discrimination and retaliation.

2) Your Employer Must Pay You for Any Work You are Asked to do During the Furlough

If you are furloughed and your employer asks you to complete any work at all during the furlough, your employer must pay you for that work. Your employer cannot have you work without pay at any time. If your employer asks you to work, you are entitled to be paid for that time.

Massachusetts law (M.G.L. c.149 §148) makes clear that employers must pay employees for any work they complete, and the employee must be paid for that work within a specific period of time after completing it. As such, your employer cannot ask you to work and then say you will be paid for that work once the furlough period is over. You must be paid in a timely manner for the work you do, and if you are not, you may be able to file an unpaid wages claim.

Massachusetts unpaid wages law also has prohibitions against retaliation. You cannot be terminated, demoted, suspended, or otherwise subjected to an adverse employment action because you complained about not being paid the wages you earned. If an employer retaliates against you for requesting pay for work you completed during the furlough, you may be eligible to file a claim under Massachusetts law.

The Fair Labor Standards Act (FLSA) protects employees who are furloughed and are asked to perform work during the furlough. However, the pay requirements are different for exempt and non-exempt workers. Salaried employees are “exempt.” Exempt employees typically include executive, administrative, and professional employees. Under the FLSA, exempt employees must be paid on a “salary basis,” which means that they generally must be paid their full salary for each week in which they perform any work. Salaried employees’ compensation cannot be reduced as a result of variations in the quantity of the work they perform. For example, if a salaried employee is furloughed mid-week after completing some work, they must be paid for the whole week.

Hourly employees are non-exempt. Under the FLSA, non-exempt employees must be paid for the amount of time, or the number of hours, that they actually work. Any work completed during a furlough by a non-exempt employee must be paid in a timely manner after the work is completed.

3) Furlough Does Not Guarantee You Will Get Your Job Back

It is important to understand what a furlough does and does not do. While there may be an expectation that you will get your job back after the furlough, you are not guaranteed to get your job back. Your employer is not legally required to take you back after the furlough.

Yet the legal protections you have against employment discrimination, which we outlined above, still apply to employment situations after a furlough. In other words, if your employer discriminates when deciding which employees will get their jobs back after the furlough, you may be able to file a discrimination claim under Massachusetts or federal law.

4) You are Entitled to Apply for Unemployment Benefits 

If you have been furloughed due to COVID-19, you are entitled to apply to collect unemployment benefits. The U.S. Department of Labor issued guidance to states to allow employees who have been furloughed due to COVID-19 to collect unemployment benefits. Massachusetts provides resources for coronavirus-related unemployment claims. Specifically, unemployment benefits may be possible for workers in periods of partial unemployment, as well as employees who have reduced hours as a result of COVID-19 non-essential business closures.

5) You are Not Obligated to Wait for Your Furlough to End to Seek Alternative Employment

If you are furloughed in Massachusetts, you are not obligated to wait for your employer to bring you back. It is well within your right to search for, and to obtain, another job while you are furloughed. This new job can be temporary or part-time work that you plan to stop doing when your current employer (who has furloughed you) reopens, or it can be an entirely new full-time job for you.

At-will employees in Massachusetts can choose to quit a job at any time for any reason unless they have a contract with the employer. Likewise, an employer in an at-will situation can terminate an employee at any time for any reason, unless there is an unlawful basis for doing so (such as discrimination or retaliation).

Contact a Massachusetts Employment Law Attorney

Think you may have been treated unlawfully? Contact Rodman Employment Law for more information.

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