Employment Law Attorneys
The Gathering Storm: COVID Rages While Worker Relief Laws Sunset

The Gathering Storm: COVID Rages While Worker Relief Laws Sunset

By Fran Slusarz,

Way back in March, when I read the Families First Coronavirus Response Act (FFCRA) and Coronavirus Aid, Relief, and Economic Security Act (CARES Act), I thought they were great. Increased unemployment benefits through the end of July, unemployment benefits for up to 37 weeks, unemployment benefits for gig workers, two weeks of paid leave in case you or a loved one gets sick, and up 12 weeks of paid emergency family medical leave if you are unable to work because your child’s school or child care becomes unavailable. Americas workers were being looked after when we need it most.

The laws weren’t perfect. They had loopholes that allowed large and well-capitalized businesses to grab Paycheck Protection Program loans intended for small businesses. But as imperfect as they are, no one thought we would be facing the same emergency in November as we faced in March. No one anticipated we’d have 8 months of lockdown, remote learning, masking, social distancing, and a quarter of a million dead Americans.

Yet here we are. New York City just announced that it is closing its public schools and returning to all-remote learning. My hometown’s public school system did not open at all this fall. (But we did get the John Oliver Memorial Sewer Plant. Comme ci, comme ça.)

What does this mean for American workers? It’s not good.

The worker protections in the FFCRA and the CARES Act end on December 31, 2020. Happy New Year! Congress is in recess until after Thanksgiving and no one expects them to become serious about coronavirus relief when they return. Even if Congress did, no one expects the President to focus it.

Our best-case scenario is a stopgap agreement to extend the laws for a few weeks for the new Congress to and new administration to take office. But a stopgap won’t be enough for many Americans.

Remember that generous two weeks of paid sick leave if we develop coronavirus symptoms? Common cold symptoms caused many of us to use days – and rightly so – but slow test results had us burn through more sick days than necessary waiting for the negative results that allowed us to return to work. I’ve had two coronavirus scares in the last 8 months, both negative. If I couldn’t work from home, I would have used up my emergency paid sick leave and then some.

Remember those 12 weeks of paid Emergency Family Medical Leave? If your children are especially attentive and diligent teenagers, you’ve got nothing to worry about. Everyone else, chances are good you’ve already used a lot of that time caring for your younger children and playing teacher for your older children. My youngest is 16. Brilliant, but not especially attentive. I was reminded daily why I dropped my secondary ed major, and why it was the right decision.

Next, the unemployed. The good news is that the jobs numbers have been better than many expected. We hit a high of 14.7% unemployment in April, falling to 6.9% in October. This is a wonderful improvement, but it is so much higher than the 3.6% unemployment of January. The bad news is that the enhanced unemployment benefits of $600 per week ended on July 31, 2020, and the extended benefits for 37 weeks to gig workers and regular employees alike ends December 31, 2020.

Finally, the grim reality. The Institute for Health Metrics and Evaluation at the University of Washington projects that we will reach 320,000 deaths from COVID-19 by year end.

Wear your bleeping mask. And call your mother. She hasn’t seen you in months. Happy Friday!

If you would like more information about this article, please contact our employment attorneys at Carey & Associates, P.C. or email to info@capclaw.com.

 

“Employed or Not Employed…That Is The Question!”

“Employed or Not Employed…That Is The Question!”

By Chris Avcollie

“To be, or not to be, that is the question: Whether ‘tis nobler in the mind to suffer The slings and arrows of outrageous fortune, Or to take Arms against a sea of troubles, And by opposing end them…”

From Hamlet by William Shakespeare  Act 3, Sc.1 (Spoken by Hamlet)

During the recent economic “sea of troubles” which followed in the wake of the Coronavirus pandemic, American workers became all too familiar with an employment term which had been rarely used in the past: the employee “furlough.” Companies have furloughed thousands of workers during the past year. With the nation and its workforce now facing a second wave of viral infections, this term is likely to remain in our lexicon during the foreseeable future. So what exactly is a “furlough” and how does it differ from a “layoff” or a “reduction in force?” More importantly, what should employees do when they find themselves “furloughed”? This article attempts to answer some of the more common questions workers have regarding this newly fashionable employment status.

What exactly is a “furlough”? In the employment context a “furlough” (from the Dutch term for “leave of absence”) is an involuntary suspension of employment by an employer. This form of suspension is often undertaken when an employer cannot afford to continue paying some or all of its workers but has reason to expect that circumstance to change in the near future. This form of suspension is almost always without pay and may last as long as the employer’s economic circumstances dictate.

Why do employers use the “furlough” instead of simple “layoffs”? A furlough is a useful cost-saving measure because it allows employers to temporarily cut payroll costs in response to unforeseen economic conditions (think global pandemic) without risking the total loss of its workforce and without incurring the expense of mass terminations and re-hiring. While some industries were able to keep workers employed during the pandemic by allowing them work from home options, others simply had no way to operate other than in person. When those industries were forced to shut down temporarily, the “furlough” allowed employers to cut payroll costs while keeping their workforce on board and ready to resume work upon re-opening.

How exactly does the “furlough” differ from a “layoff” or a “reduction in force?” First, the “furlough” is a temporary suspension in work activity and pay not a permanent change in the employee’s status. The furloughed employees remain “employed” in the sense that they remain in a legal relationship with their employer. Both a “layoff” and a “reduction in force” are generally permanent separations from the employer. A “layoff” is a permanent or semi-permanent separation of employment, usually for economic reasons rather than for cause. A “reduction in force” is a permanent separation of some number of employees as part of an effort to re-structure or to “downsize” the employer’s permanent workforce.  While an employer may always re-hire a laid-off or downsized worker, these terms denote a permanent or semi-permanent change in the employee’s status.

So is a furloughed employee guaranteed a right to resume work when the company re-opens? Not exactly. Typically, an employer will give furloughed employees either a specific date of return or set out specific conditions under which their jobs would resume. While furloughed employees have an expectation that they will return to work, there is no guarantee. The employees retain the same right to their positions that they had while actively working.  For public sector employees this expectation of return means, for example, that the employee may not be laid-off or otherwise terminated without due process because that right existed during employment. A private sector employee who is an at-will employee has no such right to due process.  In other words, a furlough could become a layoff in the private sector with the stroke of a pen.

Do furloughed workers keep their benefits? Usually to some extent. Another unique feature of the “furlough” status is that while wages are suspended along with the employee’s obligation to work, employee benefits are often continued during the furlough period. Employees often retain their health insurance, for example. There are a number of ways this may be handled by employers. Some employers will treat furloughed employees as if they were on unpaid leave and maintain health insurance benefits coverage while continuing to make the employer contributions and requiring the employee to continue premium payments.

Some employers will continue employee benefits through COBRA. COBRA is a federal law that allows employees to continue health insurance after separation from employment. If no continuing health insurance is provided, the employer must provide a COBRA notice in writing to its workers upon being furloughed. Employers could choose to fully or partially subsidize COBRA premium payments or require the employees to pay the premiums themselves. Further, under the Affordable Care Act (“ACA”), covered employers need to be aware of the potential ACA penalties when furloughing their employees. By offering health insurance to furloughed employees, employers may be able to avoid ACA penalties. Furloughed employees should discuss the options for benefit continuation as soon as possible with their managers or HR department.

Can a furloughed worker look for another job? Yes. One of the primary risks of the furlough status for the employer is that top talent might get jobs elsewhere. However, workers who are thinking of taking a temporary position just until they are recalled should consult their primary employer’s policies regarding outside employment or second jobs. An employer is still able to enforce these rules during a furlough because the employee remains, technically, “employed.” Public sector employees, for example, or employees under contract or part of a collective bargaining unit often have strict outside employment prohibitions which must be addressed before working during the furlough.

Can a furloughed worker perform some minor tasks voluntarily during the furlough just to address urgent matters or to keep the in box from overflowing? Absolutely not. Furloughs include a strict no work policy. Under the Fair Labor Standards Act (“FLSA”), employers who allow even minimal work during a furlough incur significant liability. If a salaried employee performs even a few minutes of work during furlough, the employer must pay them the equivalent of their salary for the entire week in which work is performed. If an hourly employee works while on furlough the employer must pay them for the time worked. For this reason, furloughed employees often have access to work accounts and devices revoked to prevent accidental or occasional work during the furlough.

Are furloughed workers eligible to collect unemployment benefits? Usually. A furloughed employee may receive unemployment benefits for their time without pay. Unemployment compensation rules are set by the state not the federal government so rules vary from state to state. Some states impose waiting periods or require the employee to conduct job searches in order to collect. If a furloughed worker receives back pay from the employer for the furlough period, he or she might be required to pay back the unemployment benefits received.

When the company resumes operations do they have to bring back all of the furloughed workers? No. Based on the economic circumstances, the employer may return some or all of its workforce following a furlough. What employers cannot do is select those workers they want to return based on age, race, gender, sexual orientation or other protected class. For example, an employer cannot return the youngest and least experienced and therefore least expensive workers and layoff the older and more experienced workers.  Employees should be aware of whether more men are rehired than women, or more white employees are rehired than Asian or African American employees.

When I am on furlough can I use my accrued paid vacation or Paid Time Off (PTO)? Yes. While employers do not have to pay out an employee’s vacation or PTO in a lump sum as if it were a layoff, employees are generally eligible to use their accrued vacation or PTO during the furlough. In fact, if an employer has a written policy in effect at the time of the furlough, it can require workers to use PTO during furloughs. Usually however, these policies are voluntary and not compulsory.

If my furlough becomes a layoff, am I entitled to some type of severance pay? Not usually. Employees are generally entitled to the same severance benefits after a furlough that they otherwise would have been if they had been laid off initially. In most cases employees are not entitled to any severance. If however, an employer offers severance benefits under an ERISA based severance plan, workers will be entitled to that severance if they are laid off following a furlough. Again, employers may not select which employees are laid off based on protected classes or illegal retaliation. Like all adverse employment actions, laying off employees after a furlough must be done without regard to race, gender, age, disability, or other protected characteristics.

Conclusion: While the employee furlough provides a seamless and cost-effective way for organizations to reduce payroll expenses while maintaining a ready and engaged workforce during uncertain economic times, this arrangement creates an ambiguous status for the employee. While it may be better to be furloughed than laid off, employees need to be certain they understand the parameters of this unusual employment status in order to protect their rights. If the Coronavirus economy is going to subject you to the “…slings and arrows of outrageous fortune,” be sure to arm yourself with information before you wade into the “sea of troubles…”

As always, the employment attorneys at Carey & Associates, P.C. are ready to help.  Please call (203) 255-4150 or email to info@capclaw.com.

 

 

 

 

 

 

 

 

 

They Denied My Unemployment Claim…Now What?

The good news is that the enhanced unemployment benefits available in response to COVID-19 provides unprecedented and supplemental financial relief to employees. The bad news is that you applied for these generous benefits, but you have received a denial from the CTDOL.  So now what are your options? First, you must believe that the determination denying your benefits was in some way erroneous. Perhaps certain information was missing or reported incorrectly, or perhaps the fact finder at the CTDOL just made an improper or misguided determination. Regardless of the reason for the denial, if you believe the decision was WRONG, then you should take the next steps to reverse the decision and get your benefits as soon as possible. In almost all instances, if an unemployment determination is reversed, you will get your full benefits retroactively, assuming you continue to file weekly claims. So, what is the process for getting the CTDOL to reconsider your application and approve your benefits? This same process would be filed in all other states, but check your state department of labor website by using the following LINK.

YOU MUST FILE AN APPEAL:

You have 21 days after the date of the DOL’s written decision to file your appeal. Here are the different ways you can file your appeal:

  • File by mail, fax, or online at www.ctdol.state.ct.us/appeals/apfrmnt.htm.
  • Fill out an appeal form. You can get a blank form at an American Job Center or an Appeals Division office.
  • Write a letter. Include your name, address, social security number, date of the fact finder’s decision, and the reason you think the decision is wrong.

It is critical that you keep meticulous written records and copies of everything involving your appeal. In addition, we advise that you continue to file your weekly claim, even though the determination has been made to deny unemployment benefits because if you win the appeal, you will only get money for the weeks you filed a claim. It is also important that you file the appeal within the 21 days or you may be barred from having your appeal heard unless you can convince the CTDOL that you had good cause or reason to have missed the 21 day filing period.

WHAT HAPPENS NEXT:

Unemployment appeals will result in a hearing. While we are in unchartered waters given the overload of unemployment applications in response to COVID-19, it still appears that the hearing appeal process used by the DOL before COVID remains in place.

WHAT YOU NEED TO KNOW ABOUT YOUR UNEMPLOYMENT APPEAL HEARING:

A hearing is almost like a mini trial conducted  by a “referee.” These hearings are usually done in person at the offices of the CTDOL, but given current circumstances, they will likely be conducted for the foreseeable future by phone or some other video conference technology such as Zoom. In addition, unemployment appeal hearings are almost always completed in a day or less.

Once you file your appeal, the Appeals Division will mail you a notice with the date, time, and place of your hearing as well as the issues the referee will ask about. If you do not get this notice within 30 days, you should contact the Appeals Division. You should also contact the Appeals Division if you need to change the date or if you require an interpreter, or if you have any other questions, hardships, or concerns. Again, under normal times, the Appeals Division has been very approachable and responsive, but with COVID, the process might not be as user friendly as it’s been in the past.

PREPARING FOR YOUR HEARING:

While applying for unemployment benefits is something that most people are able to do on their own and without counsel, we do advise that you consult with an attorney related to your appeal hearing and ideally that you have an attorney present with you at your appeal hearing. Because unemployment benefits have been so greatly expanded in response to COVID-19, there is a lot more money at stake. You want to win this appeal and employment attorneys will be able to prepare you and represent you at the hearing in order to increase the likelihood of success.

With or without counsel, you will want to prepare for the hearing by organizing and bringing with you all the documents, exhibits and other evidence to support your case. Such evidence or documents might include any communications regarding the separation from your employment, your earnings, the circumstances surrounding your change in employment status, personnel records etc. These documents will be presented by you and examined by the referee at the hearing. In addition, you are the party witness to your appeal and you will be sworn in and questioned. However, you are entitled to bring supporting witnesses to the hearing and if that is the case, you should be prepared with a list of questions for that witness that will help support your position. You may also want to prepare a list of questions to ask the employer’s witness. In most instances, the referee will ask the witness questions, but you may be given a chance to question the witness yourself in order to cover anything that the referee might have missed. In addition, you should be prepared with some sort of a written “opening and closing statement” as the referee may ask at the beginning and then again at the end if you have any opening or closing remarks. Of course, these are all tasks that ideally would be done by your counsel if you have one present with you at the hearing.

HEARING TIPS:

  • Arrive 20 minutes early
  • Bring pen and paper
  • Be organized
  • Bring prepared notes and documents
  • Stay calm, demonstrate respect for the referee and do not interrupt or speak until it is your turn
  • Be persuasive
  • Be honest
  • Be prepared

AFTER THE HEARING:

The referee will take some time to review what was stated and presented at the hearing and will usually render a decision within 2-4 weeks. The referee’s decision will be mailed to you, however, in light of COVID-19, it is possible decisions may be emailed. So be certain to check both in the weeks following your hearing. If you win the appeal, you should continue to file, and the checks will follow. However, if you lose the appeal, you are permitted to APPEAL the appeal. You need to file that appeal with the Board of Review in person, by fax or by mail. This further appeal process requires you to submit a statement in support of your position and to explain why you believe the appeal hearing determination was erroneous. Again, this is a task best done by experienced employment attorney, but if you are going to do this yourself, it is important that you read the referee’s decision carefully and identify any mistakes in the decision or the reasoning behind the decision. You are also permitted to include with your statement any additional “proof” or other information that was not available to you at the time of your appeal hearing. The board will read and review your statement and make a decision based on your statement. You will most likely not be granted another hearing, so that is why it is so important that your appeal statement must be persuasive, compelling and legally sound. After all, this is your last chance to get those unemployment checks!

For more information about this article or to speak to one of our Employment Lawyers, please contact Carey & Associates, P.C. at 203-255-4150 or by email to info@capclaw.com.

They Denied My Unemployment Claim…Now What?

They Denied My Unemployment Claim…Now What?

The good news is that the enhanced unemployment benefits available in response to COVID-19 provide unprecedented and supplemental financial relief to employees. The bad news is that you applied for these generous benefits, but you have received a denial from the CTDOL.  So now what are your options? First, you must believe that the determination denying your benefits was in some way erroneous. Perhaps certain information was missing or reported incorrectly, or perhaps the fact finder at the CTDOL just made an improper or misguided determination. Regardless of the reason for the denial, if you believe the decision was WRONG, then you should take the next steps to reverse the decision and get your benefits as soon as possible. In almost all instances, if an unemployment determination is reversed, you will get your full benefits retroactively, assuming you continue to file weekly claims. So, what is the process for getting the CTDOL to reconsider your application and approve your benefits? This same process would be filed in all other states, but check your state department of labor website by using the following LINK.

YOU MUST FILE AN APPEAL:

You have 21 days after the date of the DOL’s written decision to file your appeal. Here are the different ways you can file your appeal:

  • File by mail, fax, or online at www.ctdol.state.ct.us/appeals/apfrmnt.htm.
  • Fill out an appeal form. You can get a blank form at an American Job Center or an Appeals Division office.
  • Write a letter. Include your name, address, social security number, date of the fact finder’s decision, and the reason you think the decision is wrong.

It is critical that you keep meticulous written records and copies of everything involving your appeal. In addition, we advise that you continue to file your weekly claim, even though the determination has been made to deny unemployment benefits because if you win the appeal, you will only get money for the weeks you filed a claim. It is also important that you file the appeal within the 21 days or you may be barred from having your appeal heard unless you can convince the CTDOL that you had good cause or reason to have missed the 21 day filing period.

WHAT HAPPENS NEXT:

Unemployment appeals will result in a hearing. While we are in unchartered waters given the overload of unemployment applications in response to COVID-19, it still appears that the hearing appeal process used by the DOL before COVID remains in place.

WHAT YOU NEED TO KNOW ABOUT YOUR UNEMPLOYMENT APPEAL HEARING:

A hearing is almost like a mini trial conducted  by a “referee.” These hearings are usually done in person at the offices of the CTDOL, but given current circumstances, they will likely be conducted for the foreseeable future by phone or some other video conference technology such as Zoom. In addition, unemployment appeal hearings are almost always completed in a day or less.

Once you file your appeal, the Appeals Division will mail you a notice with the date, time, and place of your hearing as well as the issues the referee will ask about. If you do not get this notice within 30 days, you should contact the Appeals Division. You should also contact the Appeals Division if you need to change the date or if you require an interpreter, or if you have any other questions, hardships, or concerns. Again, under normal times, the Appeals Division has been very approachable and responsive, but with COVID, the process might not be as user friendly as it’s been in the past.

PREPARING FOR YOUR HEARING:

While applying for unemployment benefits is something that most people are able to do on their own and without counsel, we do advise that you consult with an attorney related to your appeal hearing and ideally that you have an attorney present with you at your appeal hearing. Because unemployment benefits have been so greatly expanded in response to COVID-19, there is a lot more money at stake. You want to win this appeal and employment attorneys will be able to prepare you and represent you at the hearing in order to increase the likelihood of success.

With or without counsel, you will want to prepare for the hearing by organizing and bringing with you all the documents, exhibits and other evidence to support your case. Such evidence or documents might include any communications regarding the separation from your employment, your earnings, the circumstances surrounding your change in employment status, personnel records etc. These documents will be presented by you and examined by the referee at the hearing. In addition, you are the party witness to your appeal and you will be sworn in and questioned. However, you are entitled to bring supporting witnesses to the hearing and if that is the case, you should be prepared with a list of questions for that witness that will help support your position. You may also want to prepare a list of questions to ask the employer’s witness. In most instances, the referee will ask the witness questions, but you may be given a chance to question the witness yourself in order to cover anything that the referee might have missed. In addition, you should be prepared with some sort of a written “opening and closing statement” as the referee may ask at the beginning and then again at the end if you have any opening or closing remarks. Of course, these are all tasks that ideally would be done by your counsel if you have one present with you at the hearing.

HEARING TIPS:

  • Arrive 20 minutes early
  • Bring pen and paper
  • Be organized
  • Bring prepared notes and documents
  • Stay calm, demonstrate respect for the referee and do not interrupt or speak until it is your turn
  • Be persuasive
  • Be honest
  • Be prepared

AFTER THE HEARING:

The referee will take some time to review what was stated and presented at the hearing and will usually render a decision within 2-4 weeks. The referee’s decision will be mailed to you, however, in light of COVID-19, it is possible decisions may be emailed. So be certain to check both in the weeks following your hearing. If you win the appeal, you should continue to file, and the checks will follow. However, if you lose the appeal, you are permitted to APPEAL the appeal. You need to file that appeal with the Board of Review in person, by fax or by mail. This further appeal process requires you to submit a statement in support of your position and to explain why you believe the appeal hearing determination was erroneous. Again, this is a task best done by experienced employment attorney, but if you are going to do this yourself, it is important that you read the referee’s decision carefully and identify any mistakes in the decision or the reasoning behind the decision. You are also permitted to include with your statement any additional “proof” or other information that was not available to you at the time of your appeal hearing. The board will read and review your statement and make a decision based on your statement. You will most likely not be granted another hearing, so that is why it is so important that your appeal statement must be persuasive, compelling and legally sound. After all, this is your last chance to get those unemployment checks!

For more information about this article or to speak to one of our Employment Lawyers, please contact Carey & Associates, P.C. at 203-255-4150 or by email to info@capclaw.com.

Hours Reduced or Laid Off Because of Coronavirus? File for Unemployment Benefits!

Hours Reduced or Laid Off Because of Coronavirus? File for Unemployment Benefits!

By Liz Swedock

Massive layoffs are not only coming, they are already here.  Multiple news outlets are reporting that well over 52,000 people have filed for unemployment benefits in Connecticut over only the last few days (ordinarily it would be a few hundred over the same time period, so this is a massive increase).

So what are your options if you are terminated from your job or have your hours reduced? I’ll try to address some of the basic questions, however be aware that the state is actively considering potential modifications to these rules as the coronavirus / COVID-19 epidemic continues, so stay up to date.

Who is eligible for unemployment?  If you have been fired, laid off, or had your hours reduced due to no fault of your own, odds are that you are eligible to collect unemployment benefits.  This includes both salaried employees and hourly-basis employees.  “Fault of your own” means that you lost your job due to your own “willful misconduct,” which includes things such as committing a crime at work, stealing from work, or failing a drug or alcohol test required by law.  Eligibility requires you to be available for work, so if you are sick or otherwise unable to return to work, you might not be able to collect benefits.

If eligible, how much can you collect?  In Connecticut, the maximum benefit is 26 weeks (6 months) and up to $642 per week.  Your benefit amount is equal to the average amount you made over the highest two quarters in the previous year, divided by 26.  Claims take about one week to get processed, but might take longer due to the currently unprecedent number of people filing for unemployment.

What if your hours have been reduced but you haven’t technically been fired – can you collect unemployment?  Often, yes.

This is extremely important during the current COVID-19 crisis.  The rule in Connecticut is that if an employee is not employed “to the same extent” that he or she was employed over the previous year, that individual can be eligible for unemployment.  What is “not the same extent”?  It’s not 100% clear.  This determination will have to be made on a case-by-case basis.  However, if your job has been suspended – including if you have been told by your employer to stay home and not come to work while not getting paid – you are likely eligible to collect unemployment.

If your hours have been reduced, but not eliminated, you can still be eligible for partial unemployment.

This includes if you worked more than one job and one (or both) jobs reduced your hours, or if you were a full-time employee and your employer changed you to part-time.

Lastly, if you are denied unemployment benefits, be aware that you will have the option to appeal.  The Department of Labor is going to be overwhelmed with the sheer volume of current applicants, and we cannot expect them to be error-free.  If you think you should have been granted benefits, don’t give up if you get denied.

For more information on whether you are eligible for unemployment benefits, you should review guidance issued by the Connecticut Department of Labor (CT DOL) on March 13, 2020, which is available here: http://www.ctdol.state.ct.us/DOLCOVIDFAQ.PDF .

The bottom line is don’t leave money on the table! If there is any chance that you are eligible to collect benefits, you should file a claim and be prepared to explain your individual situation.  Claims can be filed online here: www.filectui.com .  There is no penalty if you file a claim and it turns out you are not eligible.

If you have questions or concerns about this article, please contact one of our employment attorneys at Carey & Associates, P.C. at 203-255-4150 or by email at info@capclaw.com.

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