Will Furlough Expansion Under Illinois Labor Law Backfire?

Springfield, ILIn what may turn out to be an unwelcome 'Catch 22' for Illinois employment and the state of Illinois, a recently-announced expansion of the state's mandatory furlough program for non-unionized state employees could turn out to be far less beneficial than those in charge of the Illinois coffers may have hoped. That's because there is a fear that lawsuits and litigation costs stemming from disgruntled employees could negate any potential benefit and savings to the state by expanding the furlough program to 24 days.

The expansion, which was approved last month under Illinois labor and employment law, doubles the number of days from last year. As a result, non-union state workers are now required to take 24 unpaid days off—excluding paid holiday time—between now and the end of June 2011.

The Governor's office for the state of Illinois formalized the furlough program expansion to 24 days on August 2nd. However, the change was announced in spite of dire warnings from a top personnel officer in the Quinn administration who warned, in a page-long memo to legal staff both in the governor's office and the Department of Central Management Services (CMS), of the potential for lawsuits.

"I am obligated to restate my opinion that the policy decision to increase the furloughs will result in significant legal exposure to the state," wrote Margaret L. van Dijk, CMS' deputy personnel director in the July 27, 2010 memo obtained by the Chicago Sun-Times and published August 5th in the Springfield edition of the newspaper.

"With the reports of holidays or vacations being unpaid and the anger level being expressed by affected employees, I have no doubts that an employee or several employees will file complaints with the US Department of Labor alleging violations of [the Fair Labor Standards Act]," she wrote of her concern.

"As employees are required to keep accurate time sheets under the Ethics Act, those time sheets will be prima facie evidence of violations," she said. "As indicated in the memo, any savings realized from furlough will quickly be erased by fines and attorneys' fees."

The furlough program is a feature of Illinois labor law not unlike similar programs in other states—notably California—that are designed to save cash-strapped states some money. In this case, the hoped-for savings is thought to represent $18 million for Illinois.

A spokesperson for the state maintained that Illinois undertook a detailed and vigorous assessment of the furlough program prior to implementation, concluding that the financial benefits and potential legal risks to Illinois are not unlike those in other jurisdictions.

Van Dijk, however, advised in many cases non-union state workers continued to work on furlough days, adding that state agencies last year were "unwilling or unable" to prevent employees from working on days they were not supposed to, under Illinois employment law.