Vacation Policies and Retroactive Provisions
Q. The company I work for has been acquired by another company with a different vacation policy.
At my current employer, vacation was earned in the previous year but taken in the current year. If you were hired in January 1998, for example, you would earn two weeks of vacation to be used in 1999.
At the new company, vacation accrues monthly and can be taken immediately. You can also take vacation days in advance by borrowing against your account.
Now that the deal has been completed, we have been told by our new employer that we can take vacation earned last year but will not earn any vacation this year. Then in 2000 we will start accruing vacation just as other employees of the company do.
We feel the new employer has bilked us out of a year’s vacation. Is its policy legal?
--N.A., Irvine
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A. Your new employer’s policy is not legal, although the company really hasn’t “bilked” you out of a full year’s vacation.
The rule is that the employer is liable for benefits you have already accrued. On the date that the employer announced the new policy, you had not yet accrued a year of vacation to be used in January 2000. For example, if the company notified of the new policy on Sept. 30, you would have accrued three-fourths of your two weeks’ vacation pay for 1999. The company should have given you credit for the vacation that you had accrued at that point, then imposed the new policy for the future.
Your employer could have simply given you two weeks’ vacation in January 2000 and said you would not accrue any additional vacation pay for the year 2000 until the monthly accrual begins in 2001. That way, the company at least would be giving you advance notice of its intentions.
Employers can change their policies on vacation pay, but not on a retroactive basis that would deprive you of benefits that you have already accrued.
--Don D. Sessions
Employee rights attorney
Mission Viejo
When ‘Voluntary’ Weekend Work Isn’t
Q. My company has a voluntary sign-up for weekend shifts. But when some people decline to sign up, they are told they really don’t have a choice--they must choose a weekend date to work or they will be assigned one. The company also makes it clear that employees will not advance unless they put in “voluntary” weekend work.
Is this legal? The company does not have an employee manual, so our rights are unknown.
--A.R., Los Angeles
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A It is legal to require employees to work weekends.
Many employers try to schedule weekend shifts for only those who wish to work weekends. But if not enough people have signed up and the employer needs to have certain tasks accomplished, it may have no alternative other than to require some employees to work weekends.
As long as the employer pays overtime when required, the employer is within its rights to require weekend work.
--Michael A. Hood
Employment law attorney
Paul, Hastings, Janofsky & Walker
Law Firm Partner Smokes in His Office
Q. I am an associate at a law firm where one of the partners smokes in his office throughout the day.
This obviously violates California law and the building’s policy, which is reiterated in semiannual memos to all tenants. The rest of this partner’s staff apparently tolerates the smoking, but I find it very irritating.
I respect the partner and want to preserve a positive working relationship, but it is increasingly difficult to sit through long meetings. When I go home at night, my clothes reek of smoke.
How should I approach this situation?
--Y.L., Los Angeles
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A. Your question poses more of a practical than a legal issue. As you have noted, the partner’s smoking appears to be a flagrant violation of California law, one that subjects the entire firm to liability.
California Labor Code Section 6404.5 states that smoking is prohibited in all enclosed places of employment.
Although you do not state how many employees your firm has, even employers with five or fewer employees can’t require people to work in an area where smoking is permitted.
An employer that is found to have coerced employees into approving smoking or that has required an employee to work in the smoking area is subject to a penalty of up to $7,000 for each violation. Repeated violations would subject the firm to a potential civil penalty of up to $70,000 per violation.
You state that the rest of the staff tolerates the smoking, but it may be that others find the smoking as troubling as you do but are afraid to complain for fear of retribution.
I suggest that you approach the managing partner, if there is one, and discuss your concerns in confidence. If there is no managing partner, I recommend speaking to the most senior partner with whom you feel comfortable.
If this approach doesn’t work, you will have to decide whether you wish to lodge a formal complaint. If you do, you should contact your local health department and explain the situation.
--Diane J. Crumpacker
Management law attorney
Fried, Bird & Crumpacker
If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.
