COVID-19’s Impact on the Workplace

What’s the Difference between a Layoff and a Furlough? 

BY: Brian Casaceli
Associate
Mirick, O'Connell, DeMallie & Lougee, LLP

As breweries in the Commonwealth contend with employment related issues resulting from the COVID-19 pandemic, one question that consistently comes up is what is the difference between a layoff and a furlough?  The below questions and answers provide an overview of that difference as well as several related considerations brewers should be aware of when considering a layoff or furlough.  

What is a Layoff?

When a business does not have sufficient work to keep its employees busy, it may decide to conduct a layoff.  When a layoff occurs, the employment relationship between the company and the employee is terminated.  Generally, when an individual’s employment ends, neither the laid off employee nor the company expect the laid off employee to later return to his/her employment with the company. 

What is a Furlough? 

A furlough is similar to a layoff in that it is implemented when a business does not have sufficient work for its employees.  However, unlike a layoff, when an employee is furloughed, his/her employment with the company is notterminated.  Rather, when furloughed, the company places the employee on a temporary leave of absence with the expectation that it will recall the employee at a date in the foreseeable future to resume his/her duties.

            It is also important to recognize that the term furlough is sometimes used for two different types of situations.  The first is a full-time, temporary leave of absence as discussed above.  The second is when employees are relieved of their duties for, for example, a day a week or a week a month.  This blog focuses on the first type of situation.

            Are Employees Entitled to Receive their Wages/Salaries While on a Furlough?

Under both Massachusetts and federal law, non-exempt employees are entitled to be compensated for all hours worked, and exempt employees are entitled to their full salary for any week in which they perform work (subject to certain exceptions).  If an employee is not performing any work during a furlough covering a full pay period, the employee is not entitled to be paid his/her wages/salary.  An employer can, of course, decide to voluntarily compensate its employees during a furlough but it is not required.

Are Furloughed Employees Eligible for Unemployment Benefits? 

            Yes.  The Massachusetts Department of Unemployment Assistance (DUA) has issued guidance stating that “workers who are temporarily unemployed due to a lack of work because of COVID-19 will be eligible for unemployment benefits.”  The DUA considers employees to be unemployed due to a lack of work regardless of whether an employee is laid off or furloughed.  Thus, when an employer lays off or furloughs employees, it should encourage employees to apply for unemployment assistance and provide them with the required brochure on how to file for benefits.

In addition, breweries should be on the lookout for further guidance from the DUA regarding the recently enacted federal CARES Act, which extends the number of available weeks of benefits for all claimants, and supplements all claimants’ weekly benefit amount by $600.  

            What happens to an Employee’s Accrued, Unused Vacation Time if the Employee is Furloughed?

            As many employers are aware, under Massachusetts law, vacation is considered a “wage.”  Thus, because an employee whose employment is terminated is entitled to receive all wages earned but not yet paid, the employee must, too, be paid for all accrued, unused vacation.  

            The Massachusetts Attorney General’s Office recently released guidance making clear that the above rule regarding the payment of vacation time applies when an employer chooses to conduct a furlough.  Therefore, employees who are furloughed must receive all wages earned but not yet paid, including all accrued, unused vacation, on the date they are furloughed.

            The Attorney General’s Office has, however, advised employers that it will not take enforcement action for not paying out vacation if an employee voluntarily agrees to save his/her accrued vacation for use when the employee later returns to work.  In the event an employee agrees not to be paid out for accrued, unused vacation when furloughed, employers are well-advised to memorialize this agreement in writing.

            What Happens to an Employee’s Health Benefits When Laid Off or Furloughed? 

When an employee is laid off, he/she is no longer eligible to participate in his/her employer sponsored health plan.  The layoff constitutes a qualifying event under COBRA (employers with twenty or more employees) or Mini-COBRA (employers fewer than twenty employees) and the employee can elect to continue his/her health insurance coverage under the employer’s group health plan by paying the full amount of the premiums.  (As an aside, employers should notify their health insurance brokers in the event of layoff so the broker can issue COBRA or Mini-COBRA notices to the affected employees.)

            Unlike a layoff, when an employee is furloughed, the employee may be able to continue his/her coverage under the employer sponsored health plan.  To the extent that the brewery wants to continue furloughed employees on its health plan and pay the employer portion of the premium, the brewery should check with its insurance broker to determine whether continuing coverage in that respect is permitted by the plan documents.  If the plan documents do not permit an employee’s continued coverage while furloughed, COBRA or Mini-COBRA notices should be sent to affected employees.    

This is not an exhaustive list of possible considerations and each particular circumstance may differ depending on the facts involved.  For these reasons, it is recommended that breweries consult with counsel if they are unsure about a particular course of action.  

As an associate member of the Mass Brewers Guild, Mirick O’Connell is committed to helping brewers in the Commonwealth navigate any legal issues they may be facing during the COVID-19 pandemic.  We extend our best wishes to all of you, your families and your breweries during this crisis and look forward to visiting your tap rooms later this summer.  Until then, we’ll be enjoying our favorite brews remotely.  Stay well.  

**UPDATE (April 15, 2020):

 The Attorney General’s Office has released updated guidance regarding an employer’s wage payment obligations when an employee is furloughed.  Specifically, the Attorney General has stated that if an employee is furloughed and the employee’s health benefits are continued, the employer is not required to payout accrued, unused vacation.  When an employee’s health benefits cease, the employee is entitled to be paid his/her accrued, unused vacation unless the employee voluntarily agrees to keep it in his/her “bank” for future use. 

 However, as noted previously in the article, when an employee is laid off, the employee must be paid final wages, including accrued and unused vacation.  The Attorney General’s Guidance can be found here.   

Hold My Beer

An Employment Lawyer’s Tips For Craft Brewers
By: Brian Casaceli, Associate at Mirick O’Connell

A few friends and I were recently enjoying a couple ofcold beers at a local brewery – which shall remain nameless to avoid playing favorites!  We discussed how the craft brew movement has been such a positive force not only in Massachusetts, but across the country.  We marveled over the crowds that breweries draw, the diversity and selection of beers (and ciders), and the seemingly endless list of IPAs we need to try. The consensus was that, if we ever found ourselves in a position to be part of such a venture, we would all jump at the opportunity. 

On my drive home that night, the employment lawyer in me took over. Given the significant commitment it takes to establish and operate a brewery, and how quickly breweries can grow, I thought – what employment related issues would a brewery need to address to protect its interests?  Several issues immediately came to mind.     

Protecting the Brewery’s Confidential Information and Trade Secrets Through a Non-Competition Agreement

If not an owner, one of the most essential employees at a brewery is the head brewer or brewmaster – a complex role likely responsible for managing the brewery’s overall operations including hiring and onboarding employees, checking inventory, managing tanks, scheduling, and forecasting production. Given the number of breweries in the Commonwealth, it is easy to foresee a situation where your head brewer/brewmaster might leave your brewery for a competitor.  Such a departure could expose your brewery’s confidential information and trade secrets to a rival brewery.  Fortunately, you may be able to prevent such a scenario from playing out and protect your confidential information and trade secrets by putting a non-competition agreement into place with the head brewer/brewmaster.

As many of you may know, on October 1st, a new law governing the use of non-competition agreements went into effect in Massachusetts.  The law – which sets parameters for how an employer may lawfully enter into a non-competition agreement with certain employees – defines a non-competition agreement as:

[A]n agreement between an employer and an employee, or otherwise arising out of an existing or anticipated employment relationship, under which the employee or expected employee agrees that he or she will not engage in certain specified activities competitive with his or her employer after the employment relationship has ended. 

It is important to note that the law contains many nuances and, for that reason, does not lend itself to a “one-size-fits-all” approach.[1] In fact, given its intricacies, some breweries might opt to forego non-competition agreements altogether and, instead, choose to use other agreements (discussed below) to protect their interests.  Nonetheless, when carefully drafted, non-competition agreements can significantly protect a brewery’s competitive interests.  

Maintaining the Confidentiality of The Perfect IPA Recipe

Perhaps nothing is more sacred to a brewery than its recipes and formulas and the particulars of its brewing process.  To ensure that such information remains private, a brewery should strongly consider having all of its employees who have direct access to such information sign confidentiality agreements.  

Confidentiality agreements, in a nutshell, prohibit an employee from using or disclosing to any individual outside of the company, whether during the course of his/her employment or at any time thereafter, any information the company designates and maintains as confidential, except as necessary to perform his/her job duties.  Thus, in addition to its brewing recipes, a brewery can use a confidentiality agreement to protect a brewery’s trade secrets, other confidential or proprietary information regarding its existing and/or future products, customer lists and/or customer information, business plans, marketing plans and other financial information.  Aside from a confidentiality agreement, breweries should also generally limit access to such information to only those employees who have a business need access to it.        

Protecting Against a Raid of Your Employees and Customers

A brewery can also take steps to prevent departed employees from trying to take the brewery’s remaining employees, and/or its customers through non-solicitation agreements.  Non-solicitation agreements are more narrow than non-competition agreements as they focus on specific activities.    

Employees

If your head brewer or any other employee decides to take a job with another brewery, it is easy to envision how the departing employee might attempt to recruit or solicit other employees to join him/her at the new brewery. To prevent such a situation from happening, breweries should enter into an agreement with their employees that, for a specific amount of time after an employee leaves his/her employment (regardless of the reason), prohibits the employee from recruiting or soliciting for hire any of the brewery’s employees, agents, representatives or consultants.

Customers

A brewery may have an exclusive arrangement with several local restaurants (i.e., customers) that serve its beer/cider on tap.  Breweries should consider a provision that prevents  a sales professional who leaves to join a competitor from using his/her relationship with those restaurants to solicit or do business with them.   

Last Call

Any of the above scenarios can happen in the craft brew industry.  Incorporating the above provisions into your hiring process (or even adopting after the fact) will help protect your business interests, including that secret IPA recipe everyone is trying to get their hands on.  

These are just a few employment-related issues to consider – there are many others out there!  I look forward to regularly submitting articles to the Mass Brewers Guild Newsletter to discuss additional issues as they may relate to craft brewers.  Please feel free to reach out if you have questions on anything mentioned above, or if you want to discuss any other employment related matters.  And, of course, I am always around to grab a beer too!  

[1] Notably, the law prohibits an employer from using non-competition agreements for those employees who are classified as non-exempt under the Fair Labor Standards Act.  Thus, before entering into a non-competition agreement, you must analyze whether the employee, including your head brewer/brewmaster, is lawfully classified as exempt or non-exempt.  It is recommended that brewers contact counsel to assist them with this analysis. 

Brian Casaceli is an employment attorney in the Labor, Employment and Employee Benefits Group at Mirick, O’Connell, DeMallie & Lougee, LLP.  He can be reached at bcasaceli@mirickoconnell.com or (508) 860-1478.  

Celebrating our legal warriors who fight the good fight – for craft beer

Today is national, “Be Kind to Lawyers Day.” Didn’t know that such a day existed?

We can see how you might overlook it – but we are grateful for our legal experts that help to sort out the dizzying legal system here in Massachusetts and ensure that our properties and trademarks are protected.

We recently did a Q&A with four of our associate members that also serve as a reference to the Mass Brewers Guild whenever we have a question or two --  Tawny L. Alvarez from Verrill Dana, John Connell, from the Law Offices of John P. Connell, John Moran from Bernstein Shur and Robert Young from Bowditch and Dewey. We asked them to weigh in on everything from who they’d love to have a beer with, to what they think is the most common, avoidable, legal mistake brewers make.

Check it out - (There’s no clock running … so soak up the free advice!) - and spread the love to your lawyer today who keeps you on the straight and arrow. 

About Tawny Alvarez: Tawny centers her practice on the understanding that the employment landscape is ever-changing—from medical marijuana’s effect on drug testing, to the effect of social networking in the workplace and mobile devices’ effect on wage and hour issues. In this evolving landscape she recognizes that for companies to remain profitable and successful they must be proactive, as opposed to reactive, to these employment issues.

MBG: What’s the hardest part of dealing with Massachusetts’ alcohol laws?
T. Alvarez: "Brewers are applying increasingly creative solutions to create and deliver to consumers a quality product, yet many of the alcohol laws in MA—and other states—have failed to adapt to the changing marketplace. When you have a quickly developing and highly regulated market in which the regulations are antiquated, it sometimes makes it difficult to assist brewers in achieving the long-term goals they are looking for."

MBG: If you could create your own six pack, what would be in it?
T. Alvarez: “This week: Jack’s Abby Hoponius Union; Wachusett Blueberry Ale; Trillium Brewing Wild Broken Angel; Allagash Goulschip (why I’m craving pumpkin in spring is anyone’s guess); Flight Deck Brewing Rye Wing Porter; and Night Shift’s Pfaffenheck.”

MBG: If you could have a beer with anyone, who would it be and why?
T. Alvarez: “My favorite beer is always one with the brewer so that I can understand what their inspiration was for the brew.  If I had to pick one person and why: President Barack Obama.  I need to find out whether Bud Light is really his beer of choice.

About John Connell: Throughout his legal career, John has concentrated his practice in the area of civil litigation and licensing, particularly that area of licensing having to deal with alcoholic beverages, entertainment and professional licenses. John has represented individuals and businesses of all sizes in many areas of civil litigation, including contract matters, employment discrimination, real estate disputes, securities’ fraud, professional misconduct and corporate management disputes. With regard to clients in the alcoholic beverages industry, John represents alcoholic beverage wholesalers, brokers and retailers from all over Massachusetts

MBG: What do you think is the biggest misconception about lawyers?
J. Connell: “They exist to separate you from your money.”

MBG: If you could have a beer with anyone, who would it be and why?
J. Connell: “A Sports Illustrated swimsuit model, because they seem interesting.”

MBG: What’s the most common and avoidable legal mistake brewers make?
J. Connell: “Getting too far into a Lease or taking a site with a landlord who demonstrates he/she is unreasonable to begin with or failing to fully understand the site, and later finding there is no drainage; the ceilings are too low for tanks; no room for expansion; the tanks don't fit into the space or the basement; the loading dock is not for their exclusive use; not enough parking; no room for dumpsters; zoning does not permit pouring as a bar; zoning does not permit manufacturing; the triple net includes unreasonable common area improvement expenses, etc...  Site selection and lease terms seem to be the most common issues brewers seem to wish they could come back and revisit after they are too far down the road to make necessary changes.” 

About John Moran: John practices in all areas of business law, providing counsel and advice to a broad array of corporate clients on matters ranging from mergers and acquisitions, debt and equity financings, intellectual property development and licensing, as well as general business and corporate matters. As a dedicated counselor, John provides his clients with thoughtful guidance through the ins and outs of starting and scaling a business in a rapidly changing and expanding industry.

MBG: What do you like about working with breweries?
J. Moran: “The people.  I have found it very rewarding and worthwhile to work directly with various brewery owners whose primary goals are to produce great craft beer and also to operate a successful small business that takes care of its employees.  It has also been very fulfilling to advise these brewery owners on starting and growing their own, distinct breweries – from the start-up phase to the development phase.  The four-packs are awesome, too.”

MBG: What’s the hardest part of dealing with Massachusetts’ alcohol laws? 
J. Moran: “The state liquor laws that touch on some of the most emerging trends in the craft beer industry are either non-existent or open to multiple interpretations.  As a result, it is sometimes challenging to advise breweries on a particular issue when the state liquor laws do not provide much certainty or concrete guidance.”

MBG: What’s the most common and avoidable legal mistake brewers make?
J. Moran: “Not properly vetting and securing the brewery’s brand before beginning brewery operations. Once the brewery is up and running, it is very costly and challenging to undergo a complete rebrand.”

About Robert Young: Robert advises businesses, municipalities, educational institutions, and non-profit organizations on a broad range of employment matters. He defends these clients against a variety of claims, including discrimination and retaliation, non-competition, trade secrets, and wage-and-hour matters. He has litigated disputes in state and federal courts, as well as administrative agencies. He counsels clients in matters outside of litigation, including the negotiation of agreements, medical leaves, and accommodation requests, as well as employee discipline and termination matters. In addition, he conducts internal investigations on behalf of clients, including alleged harassment, whistleblower, and other employee claims.

MBG: What do you think is the biggest misconception about lawyers? 
R. Young: “That, in the words of C. Montgomery Burns, we are all “vipers” who “live on pain and misery.”  We’re nice people.  Really.” 

MBG: What do you like about working with breweries? 
R. Young: "I find the passion, dedication and outright talent for brewing to be inspiring, and I have marveled at the entrepreneurial spirit and business acumen I have seen that allows the art of brewing to develop into a thriving enterprise. 

I have also witnessed on several occasions what I would call “collaborative competiveness,” where experienced brewers have been willing to share their knowledge and experiences with others just starting out, even though they may someday compete for the same customers’ dollars.  That spirit of helpfulness and cooperation is a refreshing change of pace from the cutthroat world of other industries.  (And, if it leads to collaboration brews, all the better . . .) " 

MBG: If you could create your own six pack, what would be in it? 
R. Young: “What a great question.  In no particular order:

1. Anything made by Trillium that starts with the words “Double Dry Hopped” (or containing the words “with cold brewed coffee . . .”)
2. Bean Porter by Night Shift (I had genuine difficulty deciding between this and Trifecta)
3. Coffee Barrel-Aged Framinghammer by Jack’s Abby (though the Mole variant could also make its way in there)
4. Big Ern by Castle Island (just edging out Candlepin and Keeper)
5. Bottle Rocket by Wormtown Brewery (I also considered Be Hoppy, but felt like I needed one pale ale)
6. Citra Legacy by Medusa (only barely edging out Indian Summer by Cold Harbor Brewing; I’m thinking that the rye in Citra Legacy would add a bit of change of pace to the other IPAs)
   
   Did you notice how I was able to use the parentheticals to expand my six-pack?  Lawyers . . . always looking for loopholes!”