Category Archives: Workplace Rights

Getting “RIF’d” During COVID-19

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights. 

The pandemic has closed a lot of doors.  Currently about 12.6 million people are unemployed in the U.S.  Everyone who is still employed dreads getting the infamous Reduction In Force [“RIF”] or “pink slip.”  Here’s what the Employer owes you under Federal and State WARN Acts if you get “RIF’d”:

The Federal Worker Adjustment and Retraining Notification Act [“WARN”] (23 U.S.C. §2101 et seq.), generally, requires Employers with 100 or more full-time Employees to provide written notice to affected Employees, the State, and your Union president at least 60 days prior to a plant closing or mass layoff.  Penalties for violations can include back pay and benefits for each Employee up to 60 days, as well as civil penalties. The deadline to file a lawsuit varies from jurisdiction to jurisdiction (for more specificity, call a qualified labor and employment attorney in your jurisdiction!)

Now the bad news: Temps and strikers do not get WARN protection. A plant closing must involve at least 50 Workers at a single site, or a closing plus a layoff that, combined, affects 50 or more Workers.  A mass layoff involves either 500 or more Workers at a single site during a 30-day period, or layoffs of 50-499 Workers at a single site if the layoffs affect at least 33% of the Workers at that site.  A temporary layoff can trigger WARN obligations if it exceeds 6 months. A 50% or more reduction in hours for 50 or more Workers may also require an Employer to provide WARN notice.

Under normal circumstances, the New York State WARN Act [“NY WARN”] adds an additional 30 days to the notice requirement for some Employers, for a total required notice of 90 days. New York Labor Law §§ 860 et seq.  NY Warn applies to businesses with only 50 or more full time Workers.  Under NY Warn, the Employer must provide notice not only for plant closings and mass layoffs, but also if the plant is relocating, or if 25 or more Workers experience a 50% reduction in hours.

But on April 17, 2020, Governor Cuomo signed Executive Order No. 202.19, relaxing some of those requirements for Employers who initially laid off Employees (and complied with WARN the first time) and then hired them back after receiving Paycheck Protection Program (PPP) loans.  If Employers institute another round of layoffs after receiving PPP funding, they only have to provide notice “as soon as practicable.” 

On November 11, 2020, Governor Cuomo signed an amendment to the NY WARN that additionally requires Employers to provide notice to chief officials of local government and school districts, and to every locality that provides police, fire prevention, EMS or ambulance, or other emergency services to the job site. 

What about furloughs?  Furloughs involve reduced hours or days for a finite amount of time.  So whether a furlough triggers Federal or NYS WARN depends on its duration, how many Employees are affected, and how many hours are reduced.  Under WARN, if a furlough originally intended to last three months is extended to seven months due to unforeseeable circumstances, the Employer has to give notice when it realizes it needs to extend the duration. Employers aren’t supposed to be able to play games with the timing and extent of their layoffs to avoid WARN obligations.  It’s complicated, but there’s an “aggregation” rule that is supposed to stop Employers from gaming the system by implementing staggered layoffs.

Even if your layoff fits the above circumstances, there are some reasons the Employer may not be required to provide you notice:  the notice period can be shortened or bypassed under three exceptions:  the “faltering company” exception, the “unforeseeable business circumstance” exception, and the “natural disaster” exception. 

The “faltering company” exception is available when advance notice to Employees would interfere with the company’s ability to obtain new capital or business that could help the company avoid a shutdown or layoff. 20 CFR §§639.9(a)(3)-(4). The Employer has to have a reasonable, good faith belief that the notice would interfere with, for example, its ability to secure a loan. 

The “unforeseeable business circumstances” exception occurs when a “sudden, dramatic, and unexpected action or condition outside of the Employer’s control” causes a layoff or closure.  20 CFR §639.9(b)(1). For example, the unexpected cancellation of a lucrative contract could be an unforeseeable business circumstance.  The unforeseeability is defined as “reasonable business judgment” at the time of the occurrence—not by a court looking at the situation in retrospect. An Employer is required to give as much notice as practicable when there is an “unforeseeable business circumstance” layoff.

The “natural disaster” exception applies if a layoff is directly caused by a natural disaster. 20 CFR §693.9(c). For example, if a tornado destroys a manufacturing plant, resulting in the Workers there being laid off, the exception applies. But if a tornado leaves the plant standing and wipes out a lot of other businesses, causing an economic downturn, the “natural disaster” exception does not apply because the tornado is not the direct cause of the lack of work. 

A Florida court recently pondered whether the COVID-19 pandemic constitutes an unforeseeable circumstance, natural disaster, or special financial circumstance that would excuse an Employer from providing notice. In Benson et al. v. Enterprise, et al., the court concluded that COVID-19 might be a natural disaster, but that the layoff in question was not a direct result of the pandemic. 6:20-cv-00891 (MD Fla. Jan. 4, 2021). Thus, the Employer could not resort to the “natural disaster” exception. But the parties are still litigating –further discovery is required to determine whether the pandemic is an “unforeseeable business circumstance.” So, could a state ordering all businesses to close for three months constitute an unforeseeable business circumstance?  You can bet your hat Employers will argue it does.

Bottom line, Federal and State WARN acts are designed to give you a little safety net in the event of an extended layoff or plant closing.  It won’t make you rich, but it may help you get through the winter. If you think you’ve been RIFfed without proper notification, call a qualified labor and employment attorney in your jurisdiction to learn more about your rights.

Returning To Work During COVID-19

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

It’s scary, or a relief, or a mixture of the two.  The workplace now has cleaning requirements, PPE requirements, screening requirements, and social distancing requirements.  You may have to take a test before you go in.  You may be on staggered shifts with your co-workers, working at the office on some days and at home on other days. There are rules about who can be in different parts of the workplace and under what circumstances.  There may be one-way hallways and closed breakrooms. The rules are changing every day, and it’s hard to know what you’re supposed to do and when.  Here are some frequently asked questions facing employees these days:

  • Can my employer require me to take a COVID-19 test before allowing me to return to work?
    • It depends on the type of test. 
      • Antibody tests: On June 18, 2020 the EEOC updated its guidance in response to new CDC guidance stating that antibody testing should not be used to make decisions about whether an employee should return to work. If an employer is insisting that you take an antibody test in order to determine whether you should be allowed to return to work, call an attorney.
      • Viral tests:  However, a viral test is still an acceptable return to work requirement, as it is job-related and consistent with business necessity.
      • Temperature checks:  An employer can require employees to have their temperature taken prior to entering a workplace.  However, if your employer insists on a particularly invasive temperature-taking method, call an attorney immediately. 
      • Written tests:  Many New York employers are required to have their employees certify that they are symptom free, COVID-free, and have not been in contact with a COVID case in the past 14 days.  This may be a paper you sign when you arrive at the workplace, or the employer may require you to fill out an online form before you even start your commute.  As long as these certifications only ask about your COVID-19 symptoms, whether you are COVID-19 positive, and whether you’ve been exposed, those certifications are allowed. If the employer is asking you other medical questions, call an attorney.
      • Watch this space.  The rules are changing almost weekly.  What was correct last week may not be correct this week.  When in doubt, call an attorney.
    • What’s the difference between an antibody test and a viral test?
      • Antibody tests involve blood work.  They show whether someone has previously had the virus. The EEOC considers an antibody test a “medical examination” under the ADA.  In light of the CDC’s guidance that state that antibody testing can produce false positives, the EEOC has deemed antibody tests as impermissible medical examinations or inquiries for current employees. 
      • Viral tests check the mucus to detect if a person is currently infected and contagious.  Viral tests can be achieved with swabs and are relatively non-invasive.
    • What about a new employer?
      • If you have a conditional offer of employment, the employer is allowed to send you for a medical evaluation to make sure you are fit to perform the essential functions of your job, as long as the employer requires all new employees to undergo testing.  Any medical exams are permitted between a conditional offer of employment and the employee’s start date. 
      • An employer may delay the start date or withdraw the job offer if there is medical evidence that you are currently positive for COVID-19.
  • Can my employer make me wear a face mask?
    • 99% of the time, yes.
    • If you have a disability that precludes you from wearing a face mask, you will need to request a reasonable accommodation, which involves your doctor providing medical documentation of your condition.
    • Be aware that COVID-19 is considered a “direct threat,” so if you have medical documentation showing that you cannot wear a face mask, and your job cannot be done remotely, the likely outcome is termination – not because of your disability, but because the employer can’t risk having you in the workplace without PPE.
  • What if a person in my home is at high risk of serious health problems due to COVID-19?
    • The employer is not required to accommodate you due to the health conditions of a person in your household.
    • If you cannot telework due to needing to care for a high-risk family member, you may be eligible for FMLA, EFMLEA, or New York Paid Family Leave.  Note that these protections require medical documentation showing that the person needs you to provide care – so if the concern is simply that you don’t want to expose a person who is capable of caring for themselves, you might not have much luck getting time off under these statutes.
  • What if I am recovering from COVID-19?
    • COVID-19 is considered a “serious health condition” for purposes of workplace law.  As such, you may have accommodation and leave rights under the ADA, FMLA, EFMLEA, New York State Human Rights Law, and/or New York State Paid Leave [not to be confused with NYS Paid Family Leave, which gives you time off to care for other people]. 
    • If you are recovering from COVID-19 and believe you are ready to return to work, or if you need some more time before you’re ready to return to work, your employer may need to get medical documentation from your health care provider.  The employer is allowed to get information that will enable it to determine whether you can perform the essential functions of your job, whether more leave is warranted, and what, if any, accommodations it might be able to offer you. 
    • If you are concerned about returning to the workplace due to an underlying condition that puts you especially at risk, then it’s appropriate to ask for a reasonable accommodation.  If your work can be done remotely, you may be able to get an accommodation that allows you to do telework.
    • If your job cannot be done remotely, it’s likely the only accommodation an employer can offer is more leave.  Do not ask for indefinite leave – an employer faced with a request for indefinite leave has an easy out for terminating your employment.  Make sure your leave request has a definite end date.  It is more difficult for an employer to deny a request for additional leave as an accommodation when there is a definite end date to the leave.

Reopening is a hopeful development for people who want to “get back to normal.” But, as continually repeated by the media, social media, experts, and politicians, there is no “normal” any more.  You may find yourself returning to a very different workplace than the one you left. The majority of employers are trying to create workplace rules that keep workers safe – but you don’t have to let yourself be exploited in the name of workplace safety.  The above guidance may help you navigate some common workplace pitfalls. When in doubt, call an attorney. 

Be safe.

Getting Fired in Turbulent Times

Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship.  If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/).  We look forward to walking you through your workplace rights.

It happens.  When the public is already highly-charged with emotion, employees get fired.  They get fired for good reasons, like getting caught being racist on camera or refusing to wear face masks.  They get fired for bad reasons, like reporting discrimination.  And they get fired for scary reasons, like getting arrested while engaging in peaceful protests. 

This post isn’t about how to not get arrested at a protest.[1]  If you are engaging in civil disobedience against state-sanctioned murder of people of color today, in all likelihood you have already weighed the pros and cons of making your voice heard versus being arrested for blocking traffic or disturbing the peace.  These are the choices every person has to make for themselves. 

This post is about what to do if your employer calls you on the carpet on Monday because they saw you protesting. Or because you got arrested.  Or because they saw your facebook page.

First, unless your employer is a Government agency, remember that you do not have first amendment rights in the workplace.[2]  In most cases, your employer can fire you for any reason or no reason at all. 

That said, pay attention to what the Employer says and does.  Is everyone who got arrested getting fired? Or just a subset, for instance, people of color or people from a particular nation?  Are some people getting lesser penalties, such as suspensions?  How about people who got arrested for counter-protesting? 

If penalties for similar conduct split along racial lines, then start writing.  Take copious notes.  Note what the employer says to you and what the employer’s security guards say while they’re escorting you out.  Write it all down.  It might or might not be evidence of discriminatory intent (let the lawyer sort that out). When you get home, write up your observations in an email and send them to yourself. 

Do’s

  • Do call your Union Rep.  If you’re in a Union, the “for cause” provision in your CBA is the strongest protection you have against politically-motivated terminations.
  • Do apply for unemployment benefits immediately. 
  • Do call your criminal defense attorney and let them know that you may be asking them to communicate with your employment law attorney.  (Your employment law attorney will probably need information such as whether you should be asserting the Fifth Amendment during any investigations by the State Division of Human Rights).
  • Do ask your defense attorney whether the conduct for which you were arrested was actually illegal or not.  In the State of New York, you are not supposed to be fired for engaging in legal off-duty conduct.[3]  So if you were actually not obstructing traffic or disturbing the peace, the employment law attorney needs to know that.
  • Do call an employment law attorney.
  • Do bring the employment law attorney your notes and any paperwork provided to you by the Employer.
  • Do tell the employment law attorney about any prior disciplinary actions taken against you during the course of your employment.  The employment law attorney may be able to neutralize the effect of those disciplines, but can’t do it without all the facts. 
  • Do bring the employment law attorney your notes about any previous discriminatory conduct or conduct that went negative after you reported discrimination.  The attorney needs names, dates, and witnesses for each incident, and will ask you very specific questions about what precisely was said at what point.

and Don’ts 

  • Don’t take anything from the employer’s premises other than your own belongings.  It is tempting to download all your emails and the files you were working on in an attempt to defend yourself.  Don’t do it.  That is the employer’s property and a vindictive employer will come after you for “stealing” it. 
  • Don’t send emails from your work account to your personal account.  Even if you’re not emailing yourself documents, it still “looks” like stealing, and it may give the employer an excuse to subpoena your personal devices.
  • Don’t sign anything.  If someone is trying to pressure you into signing a severance agreement immediately, it may mean that they sense they are subject to liability.
  • Don’t give the employer a reason to fire you.  Don’t talk back, use profanity, or engage in hostile or aggressive conduct.  Stay calm and observe everything around you. 
  • Don’t assume that the employer’s conduct is actionable.  Don’t assume it’s not actionable.  The employment law attorney is the expert.  Let that person figure out the legalities of what the employer did. 
  • Don’t let getting fired stand in the way of your continued activism.  You are doing the hard work that citizens have to do in a democracy.  And the other activists around you may know about jobs that don’t interfere with your work.

If you’re protesting today, your day job should be the last thing on your mind. Your primary concerns should be making your voice heard and staying safe.  But if work gets crazy on Monday morning, the above steps may help you protect your workplace rights.


[1] If you’re out there today protesting, please make sure you know how to identify protest monitors and legal observers, and have a safety plan.

[2] If your employer is a Government agency, you have limited First Amendment rights in the workplace, and only in very limited  circumstances will they protect you from being fired. 

[3] Note the words “supposed to.”  The reality of this prohibition is extremely messy and difficult to prove. 

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