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Furlough Back Pay & Notice Requirements: Employee Rights

If you find yourself among the millions of Americans out of work due to the coronavirus pandemic, you might have questions about your rights. If you have been placed on furlough, you may want to know what that means, whether you are entitled to notice, and if you’ll be able to receive back pay or unemployment benefits as a result. We’ve put together the following answers to a few common questions from furloughed employees:


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What are furlough days?

A furlough is a mandatory suspension of work. During a furlough, an employee must not perform any work for an employer, including taking calls or checking and answering email. Although you are not entitled to be paid during a furlough, you do retain your benefits like health insurance, and there is an expectation that you will return to work at some point. In fact, most employers provide an estimated return to work date or a condition that must occur in order for furlough to end. In the case of COVID-19, your furlough might end after the shelter-in-place mandates are lifted or when non-essential businesses are allowed to re-open. Often, employers will use a Furlough Letter to communicate their decision. If you did not receive a written notice, it may be helpful to request one for your records as proof of unemployment. 

How much notice is required before an employee is furloughed?

You may be entitled to notice of a furlough if your situation meets the requirements of the federal Worker Adjustment and Retraining Notification (WARN) Act. The WARN Act requires advance notice when a mass layoff or plant closing results in employment loss for a requisite number of people. 

Whether a furloughed employee is entitled to notice under the WARN Act depends on the timing of the furlough among other criteria. If the furlough is expected to last longer than six months, then the WARN notice requirements will likely apply. If an employer has a good faith belief that the furlough will last less than six months, then the employer may not be required to provide notice. 

Also, the business must qualify. According to the U.S. Department of Labor, a business qualifies for the WARN Act notice requirements if:

  • It has 100 or more full-time workers (not counting workers who have less than 6 months on the job or work less than 20 hours per week), or it employs 100 or more workers who work a combined 4,000 hours per week or more.
  • It is a private for-profit business, a private non-profit organization, or quasi-public entity separately organized from the regular government (Note: Government employees are not entitled to notice under the WARN Act).

If your employer meets the qualifications for the WARN Act, you may be entitled to a 60-day written notice if any of the following occur:

  • A plant closing where your employer shuts down a facility or operating unit within a single site of employment and lays off at least 50 full-time workers.
  • A mass layoff involving between 50 and 499 full-time workers at a single site of employment (where that number is 33% of the number of full-time workers at that single site).
  • A situation where your employer lays off 500 or more full-time workers at a single site of employment.

If you have questions about your right to receive 60 days’ notice prior to being furloughed, ask a lawyer

If I’m being furloughed because of COVID-19, am I entitled to advance notice?

Even if your employer meets all the qualifications that require notice to be given of a furlough under the WARN Act, you may still not be entitled to a 60-day notice. The notice requirement is effectively waived if:

  • The business could not reasonably foresee business circumstances that led to a layoff or closing at the time that the 60-day notice would have been required, or
  • The layoff or plant closing is the direct result of a natural disaster.

The coronavirus pandemic that is sweeping the nation could qualify as either an “unforeseen business circumstance” or as a “natural disaster.” Consequently, the WARN Act notice requirements may not be applicable. Some states, notably California, have even issued a temporary suspension to the WARN notice requirements under certain conditions. Talk to a lawyer to understand how the law applies to your specific situation. 

Are furloughed employees eligible for unemployment?

Under normal circumstances, state law determines who is eligible for unemployment benefits with most states providing those benefits to furloughed employees. During the coronavirus pandemic, however, the federal government has stepped in and passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The CARES Act specifically grants the right to qualify for unemployment benefits to furloughed employees. It also entitles you to an additional $600 per week in unemployment benefits if you are eligible.

Am I entitled to back pay after furlough?

While you’re not automatically entitled to back pay for furlough days, you could be if your employer violated the notice requirements found in the WARN Act. If your employer was legally required to provide notice, yet failed to do so, you may be entitled to damages for back pay and benefits for up to 60 days. If your situation matches this description, it is recommended that you talk to a lawyer.

Ask a lawyer 

These are trying times for both employers and employees, as the COVID-19 crisis has shut down many businesses and altered the way we live our lives. But you still have certain rights as an employee. If you have additional questions about your rights and responsibilities during a furlough, ask a lawyer. For more resources and information, visit the Rocket Lawyer Coronavirus Legal Center

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