Q: Early in March, my husband was laid off because of the coronavirus pandemic. The owner of the company told laid-off employees he would pay them their equivalent hourly rate to keep in touch with clients and complete certain tasks during this time.
After the CARES Act was passed and the employer received a Paycheck Protection Program loan, my husband was rehired. He asked about payment for the hours he worked during his layoff, but didn’t push it because he was relieved to be back on payroll. He still has not been paid for those hours.
The loan period ended with no formal announcement from the owner, who kept assigning tasks and expecting follow-up. My husband was essentially told there was no money, but if he didn’t do the work, the business would fail and he would be left with no job after the pandemic.
My husband was angry but felt stuck. So he has kept working a couple of hours a day. Now he’s being told to meet with clients at their convenience, still with no compensation. He wants to walk away, but he is concerned that the owner will then claim that he quit and make him ineligible for the unemployment benefits we need to make ends meet. Is that possible? And is there any way we can hold the owner accountable?
A: Back up. To persuade your husband to keep working without pay, his boss is warning that he could end up losing a job that … doesn’t pay him? Points for chutzpah.
It’s not clear whether your husband has been laid off a second time or is technically still employed. What is clear is that his (former?) boss has not paid him for work he has already done, and so the boss is in no position to be making demands or threats.
In any case, your husband should do two things immediately: Report his (former?) employer to your state labor agency and the Labor Department’s Wage and Hour Division for unpaid wages, and reapply for unemployment benefits. Even if he’s still technically employed, he may be eligible for unemployment benefits if he is earning less (or no) income because of the pandemic.
After that, I strongly recommend your husband consult an employment lawyer to help him decide whether he should keep meeting with clients and recording his unpaid hours for now, and whether it’s worth taking this dispute to court, individually or with colleagues. For example, a wage theft law that recently took effect in Virginia allows unpaid workers to sue their employers for damages equal to up to three times the value of their missing wages, business law partner Declan Leonard of Berenzweig Leonard says.
It’s possible that your husband’s boss is holding off on announcing a layoff in the hopes that Congress will approve another round of PPP loans to keep his business afloat. A Senate proposal is being considered that would allow small businesses to apply for an additional PPP loan if they can show their revenue has dropped by 50%. If it passes and your husband’s boss obtains more funding, he might intend to use it to catch up on back wages.
But in the meantime, how does the old saying go? Fool me once, shame on you; fool me twice, hear from my lawyer.