15 Ways to Take Your Furlough
#2: "Dee-scending?"

Sunday, January 17, 2010

posted under , , , , by Unit for Criticism

[Here is the second of the posts the Unit for Criticism has commissioned for its series, "15 Ways to Take Your Furlough," a discussion of the condition of higher education at University of Illinois and elsewhere]

Written by Bruce Rosenstock (Religious Studies/Program in Jewish Culture & Society)

Not since the summer after my junior year in college when I worked as an elevator operator in a classic downtown Chicago skyscraper (I called out “Dee-scending!” instead of “Going Down!” and “Ass-cending!” instead of “Going Up!,” much to my puerile delight) have I considered myself to be a wage laborer. But now, under the federal Fair Labor Standards Act it turns out that the day that I am furloughed I am, by a legal fiction, turned into a wage laborer.

A blog post by University of Wisconsin law professor David Trubek explains this fiction in a humorous way, but let me give a briefer, drier account. Our appointments as faculty members are as salaried employees, and as such we are not paid overtime for any work we do, no matter how many hours beyond 40 hours each week we may work. In order to furlough us for a day, it is necessary to pretend (here’s the legal fiction) that we are paid for the work we do as if we were wage laborers for the week in which our furlough day falls (see FLSA 29 CFR 541.710 b: “Deductions from the pay of an employee of a public agency for absences due to a budget-required furlough shall not disqualify the employee from being paid on a salary basis except in the workweek in which the furlough occurs and for which the employee's pay is accordingly reduced”).

Federal labor law requires that if we did in fact work on our furlough day, we would need to be compensated at the overtime rate of 1.5 times the regular rate of pay. Failure to be given this compensation could trigger an audit (all it takes is one disgruntled employee) by the Department of Labor. It is for this reason that our administrators are so adamant about making sure that WE DO NOT WORK on our furlough day, and that anyone under our supervision who is covered by the furlough MUST NOT BE PERMITTED to work.

Also, our administrators are aware of the following law: anyone on salary who makes less than $455 per week cannot be put on furlough without triggering a possible claim for ALL PRIOR WORK OVER 40 HRS./WK as overtime. That is at least one reason why they set a lower limit of $30,000 ($455 x 52 = $23,660) for the furlough, in order to be sure not to trigger this claim (which would also allow EVERYONE IN THE SAME EMPLOYMENT CATEGORY to make the same claim for overtime.)

So, now that I see myself as a (furloughed) wage laborer one week each pay period, what do I about it? I am not complaining, let me make that perfectly clear. I actually feel proud of this newfound identity. I am also quite thankful that this status is a legal fiction and that I remain a tenured professor after all. I know that there are many, many millions of people whose lives as wage laborers are truly precarious, and I am also aware that there are many millions of wage laborers who are not only furloughed, but unemployed. No, I am not complaining.

I am not complaining, but I also want to honor the law and the status of wage laborer which the law was and is designed to protect. The Fair Labor Standards Act, passed in 1938, is one of the great pieces of New Deal legislation. If I actually work on my furlough day but report myself as not working (and all faculty at UI will report the days that they select as the furlough days), I seem, at least in my own eyes, to be denigrating the law and acting in complicity with the administration who are fully aware that most faculty will not actually refrain from ALL ACADEMIC WORK (not just teaching class) that day. So, what do I do? Believe me, this situation has made me both angry and frustrated, not because of the loss of money, but because of the bind I am placed in.

I have decided to act in perfect consistency with the law, at least as I now understand it. I am not going to work. I am also going to do my best to take furlough days only on Friday, the one day I don’t have a class. But I also don’t want to waste my time twiddling my thumbs as I wait until 5:00 pm to pick up a book or turn on email. I recalled that for a long time I have felt guilty about ignoring requests from the social action chair at my synagogue for volunteers to help out at one of the community’s food banks. So, I thought, here is my opportunity. I called the synagogue and discovered that the social action committee no longer was doing its food bank volunteer program, but I learned from the administrator of the synagogue, Kate Meghji, that as part of an MBA in non-profit administration she is getting here at UI she has developed a database of all the non-profits in our area. It occurred to me that we might use that database to connect other faculty with volunteer opportunities. Kate offered to see if certain non-profits might not like to do a one-day volunteer activity that would bring together a group of faculty who might be willing to select that day as their furlough day.

So, I intend to work with Kate on this and dedicate at least one of my four furlough days to volunteering in the community. I am hoping that this might become an opportunity for collective action. I think if a number of faculty joined in this as a way to spend one or more furlough days, it would be a great way to get some positive publicity for us as we seek to do something to draw the attention of the citizens of the state to the budget problems holding up the disbursement of our appropriations. And perhaps our administrators, who need to take two furlough days every pay period and who must for legal reasons be very careful not to be seen working on those days, perhaps they might join with some of us in this collective action. I hope to be able to make more information available about possible volunteering activities in the near future. Anyone interested in helping or participating, feel free to contact me at brsnstck@illinois.edu.


Make A Comment


Martha said...

This is an excellent way to envision the activity you can engage with on furlough days. Service is more than just what you can do as an academic for your university, department, or professional associations.

Another local resource -

The United Way of Champaign County and the Office of Volunteer Programs at the University of Illinois host this site that lists local agencies and volunteer opportunities for those interested. The agency info is for mostly up to date, but sadly the site calendar and volunteer opportunities hasn't been used as much as it could be since its launch several years ago.

Michael Rothberg said...

I think Bruce has done great detective work in tracking down the relevant provisions in the FSLA. I'm also all for using the opportunity to do work in the community--even with many more furlough days most of us would remain quite privileged residents of Champaign-Urbana.

That said, I think that if we don't do two other things with our furloughs we'll be doing a disservice to ourselves, to the university, and to the people of Illinois. First, we need to use this as an opportunity to make visible the kind of work that we do in teaching, service, and research--work that literally cannot simply stop because the administration tells us we must. (Stop thinking? Stop reading? Stop worrying about our students, our next article, our next class?) Second, we need to use this as an opportunity to organize collectively. If we don't come together in a union--and soon--the outlook for public education is bleak indeed.

So, besides volunteering, how about a "work-in" on the Quad and an organizing drive for the Campus Faculty Association?

Rob Rushing said...

I'm obviously totally in favor of this, but I wanted to point out that Doug Kibbee, our fearless leader in FLB (sorry, I mean SLCL), forwarded this to everyone in the building before it could even appear over here on Kritik. Doug is quite right when he called it a "constructive and positive reaction to a negative development" (it's also humorous and has a cogent analysis of how we are being turned into wage laborers, at least temporarily), but this, of course, is also precisely its limit. At some point—perhaps not yet, but at some point—the proper response to the destructive and negative developments we have seen would be some additional negativity. But it would be our negativity. Negativity I can believe in.

Anonymous said...

Faculty who have the time to take a real furlough can send a strong positive message through the plan Bruce Rosenstock suggests. And their good work might help some people in our community which would be a nice thing to do. It's a great idea and if I could do it I would. The thing is I can't. Realistically, I might be able to take one furlough day in a semester. But we're being called on to take four. I can barely keep up with my workload as it is. And what would be the point of not working until 5:00? Is that what we're supposed to do: not work (or claim not to work) until after 5pm and then make up for it by working the swing shift? Moonlight on our own "furlough" days? Doesn't that defeat the purpose even of adherence to the federal guidelines? In either case, though I like the public-spiritedness of Rosenstock's suggestion, I also agree with Rothberg. It's important to do whatever takes to make the many kinds of work we do visible. This is also positive (though I understand what Rushing is saying as well).

Bruce Rosenstock said...

My piece was intended, first of all, to explain as clearly as I could the legal situation that we find ourselves in. (By the way, for an explicit reference to this law as governing furlough policy, see the University of Arizona's furlough FAQ at http://www.hr.arizona.edu/furlough_faq.) We are wage laborers for the week of our furlough day. I thought that to embrace and push to its limit this legal condition might offer opportunities for revealing the contradictions inherent in the commodification of higher education. I do sincerely regret my lack of volunteerism and I do not want to instrumentalize whatever volunteer activities I and others may do on our furlough days, but I am not unaware that my suggestion has a potential for enacting a form of resistance precisely by obeying the letter of the law in a visible and public way.

Bruce Rosenstock said...

I wanted to share two questions and their answers from the Oregan State University FAQ on their furlough (from Oct 1, 2009). We are all FLSA-exempt empoyees (exempt from overtime requirements because of our salaried status) so, at least on the interpretation of the law by the Oregon State lawyers, here are the consequences of the furlough:

O. I am a FLSA-exempt employee. How will mandatory unpaid time off affect me?
Deductions from the pay of an FLSA-exempt employee, for absences due to mandatory unpaid time off,
shall not disqualify the employee from being paid on a salary basis except in work weeks in which the
mandatory unpaid time off occurs and for which the employee’s pay is accordingly reduced.
P. Do FLSA-exempt employees take rest and meal periods during a furlough week and record hours
worked on their timesheet?
Yes. Because an otherwise exempt employee becomes non-exempt during a furlough week, they are
subject to the same wage and hour laws that apply to non-exempt employees. These employees must
take at least one 30-minute meal period and, at a minimum, two 10-minute rest periods during a normal
eight-hour workday. Employees are expected to report hours worked during the week that an unpaid
leave day is taken on their timesheet.
Employees will not be scheduled for overtime during weeks when she/he is scheduled for mandatory
unpaid leave time. If operating requirements require the employee to work overtime in the same week,
the authorization for overtime will be given to the employee in writing. The employee may also request
in writing to reschedule the mandatory unpaid leave day.

Bruce Rosenstock said...

I cannot resist one more selection, this time from the Cal Poly Pomona FAQ on furloughs that are being taken throughout the California State University system this year.

16. Can a normally exempt employee still work more than 32 hours during a furlough week?

No. Exempt employees may not work more than 32 hours during a furlough week unless explicitly approved by the appropriate Vice President. The intent of the legislation is to reduce budget liability due to salaries. Overtime will increase the State's liability due to salaries. Employees can be disciplined for exceeding 32 hours without authorization.

17. Are exempt employees compensated for overtime during a furlough week?

Employees must be compensated for work in excess of 32 hours per week. Any hours worked up to 40 hours will be paid at straight time. Hours worked in excess of 40 hours will be paid at the overtime rate of 1.5 times the employee's regular rate of pay. All overtime hours worked must be reported on the Overtime and Excess Hours Paid Form. However, all overtime must be explicitly approved by the appropriate Vice President. The intent of the legislation is to reduce budget liability due to salaries. Overtime will increase the State's liability due to salaries. Again, employees can be disciplined for exceeding 32 hours without authorization.
18. I normally work outside the traditional office hours, often working more than 8 hours per day from home. Will this change for during the furlough weeks?

During a furlough week, exempt employees may be subject to a fixed work schedule (fixed start time and fixed end time).

During off hours, you should not be checking your voicemail, checking your email, or responding to telephone calls unless explicitly instructed to do so by the appropriate administrator. Your response to a phone call or email during your hours off will be considered unauthorized overtime.

Michael Rothberg said...


Another great find about furloughs. We have indeed entered a Kafkaesque world.

Volunteerism is great, furlough or no furlough, and it may well also provide good publicity for our cause, but I'm not sure I understand how it is a form of resistance. To the contrary, it seems to suggest that the furlough really does leave us with time on our hands, when that is patently false.

Unit for Criticism said...

Bruce, I appreciate your ongoing efforts to research the modes of furloughisme which have developed on various campuses. In the interests of clarity I want to point out that, so far as I know, there is no plan afoot to monitor or otherwise regulate the week in which faculty furloughs take place--as distinct from the faculty member's furlough day itself which must be reported. The situation is different for academic professionals--who, as I understand it, do need to certify no overtime in the furlough week. Here, btw, is a link to UI's own furlough FAQ page which, so far, is less detailed than those Bruce has discovered on the web.
Bruce, I am sure that Charles Dickens, among others, would have a blast satirizing the fine details of furloughism that Oregon State and Cal Poly Pomona have felt compelled to address. With all the legal advice they have probably needed to seek out and the legal challenges they may well need to face, one wonders if they will end up saving money with their furlough programs!
One thing I'd like to add is that I agree with the Anonymous comment on the matter of work after 5pm on a furlough day. My guess is that it violates the spirit as well as the letter of the mandatory furlough. Doubtless any one of us can work after 5pm--as before it--on the sly. But I'm guessing that if you reported having worked in the evening hours you'd have un-furloughed yourself for that day. So that if you actually did fire up your computer after dinner (say to answer all those emails piling up) at the end of a furlough day in which you did volunteer work, you'd still be undoing your effort to observe the FLSA--or so I think. I can imagine the public responding well to faculty member's giving their time to the community--on furlough days or any other. I also like Michael's notion of a work to educate the public about the many things we do. Lauren

Bruce Rosenstock said...

Chancellor Easter joked at the university-wide meeting for EOs about how, if the law were to be strictly enforced, he might have to remove people's Blackberries on the furlough day. I quote below from the University of Wisconsin implementation rules for their furlough so you can see why this is not a joke. The fact that we faculty are not being monitored on our furlough days and that we are not being required to keep a record of our work during the rest of the week (as Academic Professionals must) is actually, in my opinion, a way of keeping us mollified and dividing us from other equally affected workers. In other words, it is precisely designed to weaken our sense of solidarity as wage laborers. I intend to invite Chancellor Easter to make a statement about his seriousness about the furlough and, on at least a few of his ten furlough days, join (or even lead) a group of faculty in doing volunteer service. He certainly can't say that he's too busy.

Here is the relevant implementation rule from the University of Wisconsin:

"Employees must be specifically directed not to work any time
during which they are scheduled to be on furlough, without the
specific authorization of their supervisor or manager. Such work
includes being physically present in the work place, work at home,
work online, work on the telephone, “working lunches,” work on a
Blackberry or work on a cell phone. All such unscheduled,
unapproved work in furlough weeks is prohibited. Violation of this
prohibition may result in discipline."

N.B.: The rule speaks about IN FURLOUGH WEEKS not ON THE
FURLOUGH DAY. In other words, all non-
prohibited work must fall within the 32 hours remaining in the work
week of the furlough.

Is there another, better way to implement the furlough? No way is wonderful, but the University of Arizona allows for taking the 8 hours of the furlough in one hour increments throughout the pay period. In addition, it imposes a "progressive" scale, as do many other universities, that adjusts days to salary levels. This is both more rational and fairer than our policy.

John Randolph said...
This comment has been removed by the author.
Martha said...

I just came across this article on furloughs by Christian Matheis - he raises an interesting distinction between solidarity and loyalty in terms of power and the specific context of faculty senates voting to support furlough policies.