By Nicole Web page (pictured left) and Liz Stork (pictured proper)
Of the numerous industries detrimentally affected by the COVID-19 pandemic, movie and tv manufacturing within the US has nearly floor to a halt, inflicting nice hardship for everybody within the enterprise.
Many manufacturing corporations are dealing with the tough actuality of getting to cut back their workforces, both by way of everlasting layoffs or non permanent furloughs.
As new legal guidelines and laws are being enacted nearly every day on the state and federal degree, understanding compliance necessities is difficult at finest.
FURLOUGH VS. LAYOFF VS. RIF
A furlough is a short lived, unpaid depart of absence. A furlough may also contain decreased hours or work days.
A layoff is a full separation from the corporate, which could be non permanent or everlasting.
A discount in pressure (a “RIF”) is the everlasting elimination of a place with no expectation that the worker will return to work, although someday folks check with layoffs and RIFs interchangeably.
When you place workers on furlough, you might be able to elect to proceed worker well being advantages throughout the furlough interval. To find out if that is an choice to your firm, you have to seek the advice of your organization’s profit plan paperwork.
It’s essential, particularly presently, to be sure you and your workers perceive the influence of a furlough or layoff on their medical insurance protection underneath your organization profit plans or the Consolidated Omnibus Finances Reconciliation Act (COBRA).
Your organization’s explicit well being and different profit plans, in addition to your organization’s employment insurance policies, could tackle when protection ends and the extent to which discount in an worker’s hours or pay—or a short lived lay-off—could also be thought of a triggering occasion for COBRA protection.
WHO TO FURLOUGH?
If you’re within the scenario of figuring out who to furlough, you need to guarantee that you’re not disproportionately affecting workers in legally protected courses—e.g., race, shade, being pregnant, intercourse, age, and so on. (The vary of “protected courses” varies primarily based on the federal, state, metropolis and native legal guidelines that apply.)
Make sure that your selections are primarily based on sound enterprise causes, are utilized to employees persistently, and are well-documented and communicated to employees. In case your workforce is unionized, you should definitely seek the advice of your collective bargaining settlement(s).
Whether or not workers are entitled or in a position to acquire unemployment insurance coverage throughout a furlough or following a layoff will rely upon their explicit state’s unemployment insurance coverage legal guidelines and requirements.
Generally, an worker who’s laid off will have the ability to search unemployment insurance coverage. Whether or not a furloughed worker is eligible for unemployment insurance coverage will rely upon the circumstances of the furlough.
One factor to notice is that when you interrupt an worker’s furlough, and the worker works for you throughout a furlough, that would jeopardize their potential to gather unemployment insurance coverage for that week.
Chances are you’ll need to allow or require workers to make use of accrued however unused trip time and accrued trip pay throughout a furlough, although you must test to make sure compliance with relevant state legal guidelines concerning half time employment.
The result’s that by utilizing this accrued time and unused pay, the graduation of unemployment advantages could also be postponed, which can be useful to the employer.
The federal Employee Adjustment and Retraining Notification Act (“WARN”) and state-law equivalents require advance discover for so-called “plant closings” or “mass layoffs” lasting longer than six months.
Some state-level WARN necessities—in California, for instance—have been relaxed in gentle of COVID-19. States can also require that sure notices be given to workers on termination or earlier than decreasing their salaries or hours.
WAGE AND HOUR REQUIREMENTS
The federal Honest Labor Requirements Act (“FLSA”) and state-law equivalents require that employees be paid not less than minimal wage for all hours labored, and extra time for hours labored over 40 hours in a workweek, until exempt from extra time necessities. (Different states could have further wage and hour necessities.)
If furloughed workers carry out any work for the employer, the employer should make sure that they’re paid for all hours labored, or within the case of salaried, exempt workers, that they’re paid their full salaries for any week by which they carry out any work.
EMPLOYEES ON LEAVE
In excited about a furlough or RIF, you might want to take into consideration the impact on workers who’re already on depart or who’ve requested depart from the corporate.
Watch out of shedding workers in a fashion that might be construed as discriminatory primarily based on, for instance, an worker’s being pregnant, caregiver standing, or well being points.
Be conscious of recent federal and state depart legal guidelines, such because the Households First Coronavirus Response Act, which offer enhanced rights to sick depart and household and medical depart associated to the coronavirus.
On this very unfair time, employers should make sure that workers are being handled pretty throughout the board.
CONTRACTS AND EMPLOYEE HANDBOOKS
Seek the advice of any employment contracts and overview your organization’s Worker Handbook to grasp whether or not there are any obligations or acknowledged insurance policies that may be triggered by a furlough or layoff.
Any employment or different related settlement ought to be consulted previous to any furlough or layoff, to keep away from any doable breach.
There are different authorized and enterprise elements that may go into decision-making presently. And naturally there’s the emotional pressure that comes with uncertainty and concern for our employees, mates and family members.
That is an extremely anxious and complicated time for everybody within the leisure enterprise, and the authorized elements are evolving nearly every day.
We all know so many on this neighborhood personally, and we all know how good, artistic and powerful you’re. We are going to come out on the opposite aspect of this and till then, please keep secure and effectively.
This text is offered for normal data solely and is probably not relied upon as authorized recommendation. It initially appeared in sister publication Realscreen as a part of the non-fiction/unscripted model’s ‘Must Know,’ sequence, which options the views of leisure legal professionals on varied points affecting the manufacturing panorama.
Nicole Web page (pictured left) is a accomplice at Reavis Web page Soar LLP in New York and practices within the areas of leisure and employment regulation. Web page offers counsel for movie and tv manufacturing corporations and her work encompasses manufacturing authorized, pre-publication overview and negotiation of broadcast and distribution offers. She additionally counsels corporations and people on quite a lot of employment issues together with employment and separation agreements, employer authorized compliance, office discrimination and harassment prevention and different employment issues.
Liz Stork (pictured proper) is an affiliate legal professional at Reavis Web page Soar LLP and practices within the space of employment regulation, litigation, arbitration, mediation and dispute decision. Stork has represented purchasers in issues involving employment discrimination, misclassification, and different wage and hour claims, with explicit experience in school actions. She additionally counsels purchasers on employment and enterprise issues in response to disaster or different sudden enterprise influence, such because the COVID-19 pandemic and ensuing enterprise closures, together with continuity plans, worker furloughs, reductions in pressure and different crucial measures.