Somerset, NJ asked in Employment Law for New Jersey

Q: My employer is essentially threatening me with unemployment if I do not "contribute" while on furlough. What do I do?

Due to COVID-19 the entire small business of 10 employees was put on furlough. My manager told me, "we can only ask you if you would like to volunteer and your job isn't in jeopardy." But later in the day, I get a call from the owner with thinly veiled comments that I might not be a part of the team if I do not "contribute." ("Oh, no! We're not calling it work now!"). He said in one sentence that it's ok if I don't, but... He essentially insinuated I would not be a part of the team when everything was over if I did not continue working while on furlough. I thought maybe I wasn't reading between the lines correctly. I spoke with two other co-workers and they agreed as they had very similar conversations. I also worked unpaid for two weeks with the promise I would be paid. When I was told to apply for unemployment, I asked my employer if I would be getting paid for those two weeks. He said I would get one check and to write on my unemployment the other week had been unemployed.

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1 Lawyer Answer

A: Under the Fair Labor Standards Act, you must be paid for all hours worked. If the work your employer is asking you to "volunteer" to perform for no pay is the same type of work you normally perform for pay, then you should be paid for this time and any other "volunteer" work you've already performed. If you are still on furlough and still not working (for pay), then you are still eligible to apply for unemployment based on the expanded eligibility rules during the ongoing COVID-19 pandemic.

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