DEAR CARRIE:My brother-in-law works in the construction industry. His company is forcing workers to take a weeklong unpaid furlough this month and in September. The company has warned employees not to file for unemployment benefits for the time off; if they do, the employer will consider that tantamount to a resignation, which will effectively negate their unemployment claim. I don't think this is fair and question if it's even legal. Does my in-law have any options here? A week without pay will be difficult, since he and my sister live basically from paycheck to paycheck.
- Who Benefits?DEAR WHO: If he is furloughed, your brother-in-law has a right to file for unemployment benefits. And he should file as soon as the furlough begins. The reasons are a bit technical but will help him collect benefits in the future.
He should file as soon as his furlough starts because that week will be considered his waiting period, a spokeswoman for the New York State Department of Labor said. He won't collect anything for that week. But he would have satisfied the waiting-week provision. So when he is furloughed in September, he would be able to collect unemployment benefits for that week, provided he meets certain other criteria. In fact, if he is laid off any time within a year of filing the claim, he could collect, because once you open an unemployment insurance claim, it's good for a year, the spokeswoman said.
Telling furloughed workers that filing for unemployment benefits is tantamount to a resignation is just incorrect.
"I think [the boss] just doesn't understand the rules," the spokeswoman said. "Any individual separated from work through no fault of their own is entitled to benefits."
The company is hinting that it may fire anyone who files for unemployment benefits during the furlough. Your brother-in-law may have to take that into consideration. But he will have a right to file.
For more information, call the state Labor Department's unemployment Telephone Claims Center at 888-209-8124. I'm told that you have to have a lot of patience because the system is automated.
DEAR CARRIE:My wife is a registered nurse who works for a local nonprofit nursing home. She is paid biweekly. During those two weeks she often works some overtime but doesn't receive extra pay. Yet when she needs one to three hours off for a doctor's visit or for personal business, she is docked. If she has overtime banked, the hours come from that. Otherwise she is docked the full time missed from her personal or sick time. I think it is unfair that she isn't paid overtime but is docked for the rare times she is late. The nursing home says it's legal. I would very much like your opinion on this matter. - Illegal Deduction?DEAR ILLEGAL DEDUCTION: The nursing home is right. Its approach may not be fair, but it is legal because of your wife's employment status. As an RN, she falls into the "professional category" and, thus, is exempt from federal laws requiring workers to be paid overtime premium pay when they work more than 40 hours in a week or to be paid for any extra hours at all.
In exchange for that exemption, the company is restricted in docking her pay. Her pay can't be docked when she misses less than a day. It can be docked when she misses a full day.
But here's the wrinkle, or the rub, as you might term it: While the nursing home can't dock her pay when she is a few hours late, it can take the time from her accumulated paid-time off, such as vacation or sick days.
More on unemployment
For more information on when to file an unemployment insurance claim, go to: labor.ny.gov/ui/claimantinfo/beforeyouapplyfaq.shtm#1; for more on the professional exemption go to: dol.gov/whd/regs/compliance/fairpay/fs17d_professional.pdf