Smart Law Blog

Furloughs and layoffs are actions taken by an employer. Typically, these actions are taken to ease the pressure of short-term financial burdens on the employer’s business. Employers may decide to use either a furlough or a layoff depending on various factors related to unfavorable financial circumstances or due to a lack of available work. For employees who are either furloughed or laid-off, the distinctions between the two are important to know.

Layoff
Generally, a layoff is a separation of employment which may be either permanent of temporary. In the case of a layoff, the worker no longer on the company payroll, but may be rehired sometime in the future.

Furlough
A worker that is furloughed remains an employee of the company. However, the worker is typically forced to take a break from work without pay or take a reduction in the hours that worked.

Do I Need an Attorney if I am Furloughed or Laid-Off?
There are many legal considerations surrounding labor and employment. Here, it’s important that employers handle a layoff or furlough appropriately. Also, recent emergency orders that you may not be aware of may impact the nature of any furlough or layoff. If you feel that you have been furloughed or laid-off inappropriately or are unsure if you have been appropriately laid-off or furloughed, you should consult with an attorney that is experienced with labor law.

As an Employer, Do I Need an Attorney Before I Layoff or Furlough an Employee?
To avoid costly exposure to liabilities, as an employer, speaking to an experienced and qualified labor attorney could save your company time and money. Here, it’s always better to get the right advice to avoid a potential legal issue than to deal with a legal issue after an inappropriate layoff or furlough.

Most employment in California is defined as being “at-will.” Here “at-will” employment may be terminated at any time by either the employer or the employee with or without cause. Though this may seem very simple, several exceptions have come about with contractual, statutory or public policy related measures, which can greatly limit an employer’s ability to termination and employee. 

Statues that focus on anti-discrimination are often cited as a limitation on an employer’s right to terminate an employee. Here, employers are unable to terminate an employee based on several protected reasons, including race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation. 

Another statute that limits “at-will” termination of an employee protects whistleblowers from retaliation. Generally, employees can report unlawful conduct without being subject to termination. Here, employees may be protected from retaliation when disclosing details about a violation of state or federal law to law enforcement or a government agency. 

Other statutes, in part, protect employees in the areas of union activities and leave of absence. 

Needless to say, “at-will” employment can be tricky and the surrounding facts of any “at-will” employment issue will have an important impact on any “case.” If you are an employee or an employer who would like to learn more about how the law may apply to your situation, contact SmartLaw to find a legal resource that is right for you.