As states reopened after coronavirus lockdowns, millions of Americans returned to work in May. Many found their hours were cut, their pay was reduced, and their job descriptions had changed — sometimes beyond all recognition.
Q: I am a restaurant worker on unemployment because of COVID-19. Our employer has received a Paycheck Protection Program loan and is offering to hire 15 to 20 of us back as maintenance workers. We are all servers, bartenders and hosts. None of us has ever performed any maintenance work.
The job requirements for the maintenance position are outrageous. We must be able to lift 100 pounds or more. (Some of our hostesses barely weigh more than that.) Also, the position requires extensive relevant experience, or training and skills such as replacing and repairing electrical and plumbing fixtures, operating power tools and cleaning equipment, and performing major janitorial duties. They have given us only one or two days to respond to this offer.
We believe they’re hoping we’ll decline the offer. We’ve been told our company has been trying to “clean house” for months, and management has changed multiple times in the past few years. We believe they are taking advantage of this pandemic to get rid of us. Can we take any legal action?
A: This goes beyond bartenders delivering food to homes and bouncers scrubbing toilets. It sounds like they’re making you an offer they know you’ll refuse. But is it unlawful?
For purposes of PPP loan forgiveness, under updated guidance, employers are not required to replace workers who reject a good-faith written job offer. Paul Abraham, managing attorney at business law firm PJI Law, notes that the PPP guidance requires only that “the offer be for the ‘same salary or wages’ and ‘same number of hours’ ” as the worker was receiving before the shutdown.
Still, even if you’re being offered a different position because your old skills aren’t needed right now, “the offer does have to be made in ‘good faith,’ ” notes Abraham. “Does a restaurant really need 15 janitors and no servers?”
If you have an employment contract, employers can’t change the terms of that contract without consent, says Edgar Ndjatou, executive director of Workplace Fairness. In any case, Ndjatou thinks it’s worth asking management to clarify what they expect and whether these positions really are the only options available for returning to work.
If so, you might bring this situation to the attention of the Small Business Administration, which administers the PPP loans, and the Department of Labor. And don’t forget strength in numbers: The more people who add their voices to the complaint, the better the odds it will be heard.
Q: Since the pandemic started, the owner of our company decided to change all employees from salaried to hourly to avoid layoffs or furloughs. Now that we are hourly workers, the owner says we are no longer eligible for paid vacation time. I am curious about my rights.
A: The employment lawyers I consulted confirmed that they’re seeing more employers changing employees’ status under the Fair Labor Standards Act from exempt (salaried) to nonexempt (paid hourly, eligible for overtime) to manage costs during the pandemic when there isn’t enough work to fill a 40-hour week.
The catch is that when business picks up again, anyone working more than 40 hours in a week will be entitled to overtime pay. Reclassifying you as exempt isn’t just a matter of checking a different box. It means re-examining such factors as the type of work you perform, how much you earn weekly, and how much independent judgment you exercise to make sure you actually qualify as exempt, says Amy Epstein Gluck, partner at FisherBroyles.
Generally, offering paid or unpaid vacation leave is up to your employer, regardless of your FLSA status. But if your employer is trying to cancel paid leave you’ve already accrued, that may not be allowed depending on what state you work in. Epstein Gluck notes that some states require employers to pay out unused PTO to their employees.
Also, if your employer means to deny you PTO you’ve already earned, that may be prohibited depending on what state you work in, says Epstein Gluck.