Employers Required to Pay Accrued Vacation

Q. My employer does not pay unused vacation time upon termination of employment. Is this policy legal in California?

--C.D., Irvine

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A. Accrued vacation time must be paid upon termination of employment. A “use-it-or-lose-it” vacation policy in California is illegal.

An employer can put a cap on accruing additional vacation until you use the vacation that you do have, but it can’t make you forfeit vacation that you already have earned.

The vacation pay is due on the date of termination. An employer faces severe penalties for failing to pay on time.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Employers May Grant Additional Family Leave

Q. My employer of three years has granted me a three-month leave of absence to care for my 92-year-old mother, who has cancer.

Now my husband has several health problems and I need to be available to care for him.

Are companies able to grant continued leaves of absence if requested under special circumstances or am I facing termination if I do not return on the date specified at the end of my three-month leave?

If I am terminated, am I eligible for unemployment under these circumstances?

--H.S., Cypress

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A. It sounds as if your employer has granted you a leave under the family and medical leave laws. These laws apply to employers who have at least 50 people employed within a 75-mile radius of the place in which you work.

If this situation applies, you were entitled to the family leave to care for your mother. You may also be entitled to another family leave to care for your husband.

These laws, if applicable, entitle employees to 12 workweeks of unpaid leave to care for a seriously ill parent, spouse or child. Eligible employees are entitled to this 12-week leave in any 12-month period.

If your husband’s medical problems are sufficiently serious to qualify under the laws, you should contact the human resources department and request an additional leave for your husband’s care.

If your husband’s problems are not serious enough to qualify under the laws, or if your last leave was taken within the 12-month period, your employer can still voluntarily provide you with additional unpaid leave. However, it is not obligated to do so.

If you are terminated because you do not return at the expiration of your leave, you would be eligible for unemployment benefits if you can establish that you had “good cause” to leave your job. This determination will depend on all the circumstances of your situation.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker

Exempt Employees Can’t Be Docked for Holidays

Q. Our company policy states that employees are not eligible for holiday pay during their first 90 days of employment. Would this policy extend to exempt employees?

We have been advised that California labor law requires that exempt employees be paid for holidays regardless of company policy. Should exempt employees be paid for holidays before completing the 90-day waiting period for other benefits?

--D.B., Los Angeles

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A. An exempt employee whose status hinges on whether he or she receives a salary cannot be docked for an unworked holiday. This is true regardless of whether the employee has qualified for holiday pay under an employer’s benefits plans.

The rationale is that the “salary basis” calls for an employee to receive his or her entire weekly salary for every week in which he or she performs any work, without regard to the quantity or quality of work performed.

Deductions cannot be made when the employee is ready, willing and able to perform work but does not do so because of the scheduling decisions of the employer--for example, a decision to close for a holiday.

Failing to pay an exempt employee for holidays creates the risk that the overtime exemption will be lost.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

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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. Recent Shop Talk columns are available at https://www.latimes.com/shoptalk.