Employers May Put Some Limits on Vacation Accrual

Q: At my former employer's, we got one week's paid vacation after a year of employment. I completed my year this July. In late September I resigned, giving two weeks' notice, but received only half of my vacation pay.

My employer has a written rule that upon termination, voluntary or otherwise, vacation pay is computed from Feb. 1.

I believe that when you have completed a year of employment, you are entitled to one week's paid vacation. Is my employer correct? If not, how do I get my money?

--W.W., Cypress

A: Two conflicting provisions of California law are at issue here. On one hand, employees are considered to accrue vacation as they work, and they are entitled to be paid all accrued vacation upon termination.

On the other hand, an employer may place reasonable limits upon the accrual of vacation.

For example, an employer may lawfully provide that no vacation will be accrued during the first six months of employment, or that once a maximum accrual is reached (say, two weeks), no further vacation will accrue until some existing vacation is used.

Whether you are entitled to receive additional vacation will depend upon exactly how your former employer's policy is worded.

If it says that employees will not begin accruing vacation until Feb. 1, then the policy is legal and you are not entitled to more vacation. If, by contrast, the policy is silent about when vacation starts to accrue or states that vacation starts to accrue at some point prior to Feb. 1, it is not legal for your employer to pay you only for vacation accrued after Feb. 1.

If you still think you are owed vacation and your employer refuses to pay it, you can file a claim with the state labor commissioner, who will look into the matter.

--James J. McDonald Jr., Attorney, Fisher & Phillips, Labor law instructor, UC Irvine


Q: I work as a customer sales administrator for a company. Recently we were told that everyone in our department was changed to an inside sales rep. That resulted in a 30% cut in our paychecks and we were all put on commission. We were told to sign the paperwork or we wouldn't be working there.

Is it legal to do that? This all happened within three weeks, so there was no chance to look for another job--no other options at all.

--S.T., Irvine

A: Assuming that you did not have a written contract of employment and that the company's actions did not otherwise violate some written policy when the new arrangement was implemented, there was nothing illegal about the new arrangement. Since most employees in California are employed at will, and can be terminated at any time, employers can also modify the compensation arrangements with their employees at any time without incurring legal liability. All that employers must do is to pay minimum wage and overtime compensation to non-exempt employees.

However, if the new arrangement does result in a substantial reduction in the compensation received by the sales staff, they can probably resign and still receive unemployment benefits from the Employment Development Department.

--Michael A. Hood, Employment law attorney, Paul, Hastings, Janofsky & Walker

Generous Leave Policy Can Lead to Trouble

Q: In some ways, our company's leave of absence policy is more generous than is required by the family and medical leave laws. For example, in the past we have allowed employees to take time off to care for a brother or sister who was seriously ill, even though the laws do not include siblings in the definition of family . Will the company run into any problems by being more generous than the law requires?

A: It may. Let's take the example you supplied--the company that grants time off to an employee with a seriously ill sibling. Let's also assume that the company is covered by family and medical leave laws. These laws generally require an employer to allow eligible employees to take up to 12 weeks of unpaid leave in a 12-month period for a serious illness or to care for a family member with a serious health condition.

Let's assume that the employee takes a six-week leave of absence to care for a brother who has a serious illness. What happens if, later in that same year, the employee or the employee's spouse has a serious health condition? The company will be required to give the employee 12 weeks off under the family and medical leave laws in addition to the six weeks previously granted.

Why? Because the first six weeks of leave were not covered by the laws. In short, the company may find itself forced into being more generous than it had intended.

Another problem with a generous leave policy occurs when an exempt employee--one who does not get paid overtime for working extra hours--takes what is known as intermittent leave, such as being absent for a few hours each week for regular treatment of a chronic illness. Normally, if an employer docks an exempt employee's pay for part-day absences, the employer risks having to treat the employee as non-exempt unless the leave is covered by the family and medical leave laws.

Despite these issues, many employers choose to have more generous leave of absence policies than required. Moreover, as a practical matter, it is unlikely that many exempt employees would complain about having deductions taken from their salaries if the employer is generous enough to give them significant time off.

--Josephine Staton Tucker, Employment law attorney, Morrison & Foerster

Employee Should Be Told of Odor Problem

Q: What is the most professional manner to address an employee concerning his personal hygiene? This employee is a valuable asset to our organization and is well liked by his co-workers. However, his body odor is offensive to those who work around him. This situation has persisted since the employee joined our company, but no one knows exactly how to address the matter without hurting his feelings. What should we do?

--R.M., Costa Mesa

A: Someone from your company--either a co-worker who has a good relationship with this worker, or the most tactful among you--needs to let this employee know about the situation. My guess is that the employee is unaware of the problem, and if the issue is brought up "gently" and tactfully, he will take immediate steps to deal with it.

--Ron Riggio, Professor of industrial psychology, Cal State Fullerton

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