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As Some Furloughed Employees Return to the Workplace, Others File Discrimination & Whistleblower Claims

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We previously discussed the issue of furloughs (or unpaid, temporary leave) turning into layoffs here in Florida, and what options employees had in terms of discussing potential legal options with an employment lawyer. A number of furloughed employees are now returning to work, both on-site and remotely, and as they do, it is critical that they are also aware of their rights in the context of employment law. Still others are just now being informed (or otherwise finding out) that they are not returning to their previous employment. Employees will inevitably have questions concerning how their employer decided who would return. Consulting with one of our employment lawyers may be beneficial. If employers do not have work plans that contain thoroughly-considered criteria used to make this decision (i.e. based on job function, skills, etc.), they can face potential discrimination claims, especially if a protected class has been disproportionately impacted by these decisions and they are not adequately justified by reasonable explanations. This includes discrimination based on age, disability, national origin, race, religion, sex/gender, and sexual orientation.  For example, there have already been claims filed by employees claiming that employers used COVID as a cover to actually eliminate employees entirely for religious and other discriminatory purposes, as well in retaliation for complaints made about how their employers handled the pandemic.

“Safe, Healthful Working Conditions”

These claims also include employees asking questions about exposure to other infected coworkers, requesting that basic safety measures be put in place, and making other basic requests covered by law. Visit our website to read our previous blog where we discuss Guidance provided to employers on preparing workplaces for COVID-19 by the Occupational Safety and Health Administration (OSHA). Employers must provide “safe, healthful working conditions,” which include protecting employees against “hazards that cause serious physical harm or death.” A furloughed employee who believes that their employer has specifically chosen not to bring them back to work because they exercised their rights under the Occupational Safety and Health Act can file a whistleblower claim; in addition to a number of other claims.

Additional Protections Provided by the Age Discrimination in Employment Act, Americans with Disabilities Act, & Family and Medical Leave Act

Employers also cannot purposely layoff anyone simply because they may have been affected by COVID-19; for example, older or disabled workers; due to protections provided by the Age Discrimination in Employment Act and Americans with Disabilities Act; amongst other laws. This also includes parents who are adversely affected by childcare and school schedules, as the Family and Medical Leave Act allows parents to take needed time off without fear of losing their jobs.

Benefits & Communications

Employees should also be aware of their rights with respect to their benefits, which furloughed employees typically retain, as well as communication requirements from employers. Any and all paid time off, such as sick leave, is reinstated upon return, and employers have to follow certain notice requirements in terms of communications; both with furloughed employees and those that are not returning. For example, one group of furloughed workers accused their employer, after two months of no communication, of posting their job positions as openings online, without any other communication.

Conversely, employers need to provide clear communication regarding return dates and any impacts on benefits. This communication should include, at a minimum:

  • Similar information as an offer letter in terms of work schedules, bonuses, compensation plans, etc.;
  • A reminder that employment is at-will and employment conditions remain consistent with previous terms and conditions of employment (regarding confidentiality or any other contract provisions); and
  • A request to inform the employer as soon as possible if the employee decides not to return to work.

If You Have Any Concerns About Florida Employer Violations, Contact Our Labor & Employment Attorneys

If you have been the victim of discrimination or any other legal violation in the workplace, our Jacksonville labor & employment attorneys work to hold employers liable. Contact Douglas & Douglas today to find out how we can help.

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