Payment Will Depend on Timing of Vacation Accrual
Question: Although my company’s employee manual says that employees are not allowed to accumulate more than three weeks of vacation, my paycheck shows that I have accrued much more vacation time.
I’m getting ready to leave the firm and am wondering if I am going to have trouble getting paid for all of the unused vacation.
--S.P., Thousand Oaks
Answer: You may have problems if your employer’s policy expressly provides a three-week limit for accumulated vacation.
It depends on whether you have been allowed to accumulate more than three weeks because of a clerical error or whether you accumulated the extra vacation pay before the three-week limit on accumulation was put into place.
If it is just a clerical mistake, you probably will not be able to collect. But if you accumulated this vacation pay before your employer placed a maximum on vacation accruals, you may be entitled to receive the additional vacation pay.
--Michael A. Hood
Employment law attorney
Paul, Hastings, Janofsky & Walker
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Employer Must Refund Overpaid Disability Tax
Q: My sole employer for 2001 has withheld too much for the state disability insurance tax, which means I paid more than the maximum amount for the year.
My employer says I need to request a credit for the overpaid SDI amount on my 2001 state tax return. I say my employer needs to refund the overpaid amount to me.
Who’s correct?
--J.S., Sunnyvale
A: You are correct. When one employer withholds excessive amounts for the state disability insurance tax, that employer must refund the amount that was overpaid.
When excessive SDI amounts are withheld by two or more employers, you would claim a credit on your state tax return. See the instructions for Line 41 in your 2001 California personal income tax return.
In 2001, the maximum wages subject to the disability insurance tax were $46,327. The maximum SDI tax on this amount was $416.94.
Nearly 11.9 million California employees pay the tax, which is intended to provide short-term benefits for non-work-related illnesses or injuries, as well as pregnancies.
Some employers fail to pay attention to the maximum amount that can be taxed. Correcting the mistake should be relatively easy even if it carries over to a new calendar year. Corrective entries should be made by the employer when reporting SDI payments to the Employment Development Department.
You acted properly in calling the overpayment to your employer’s attention. The sooner you let the employer know, the quicker the company can correct the problem.
You should not face retaliation for complaining about an improper wage deduction.
--Don D. Sessions
Employee rights attorney
Mission Viejo
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Find Another Way to Curb Tardiness
Q: To encourage staff to arrive on time, we would like to institute a policy docking employees half an hour if they are more than six minutes late.
Promptness is critical because the employees supervise children.
Is such a policy legal? If not, is there another way to try to curb the tardiness without termination or other disciplinary action?
--M.C., Los Angeles
A: Such a policy would not be legal.
The law protects the right of nonexempt employees to be paid for all the time they work. Therefore, even though your goal is perfectly reasonable and is important for your business, you may not achieve it by docking employees for more than the time they actually are late.
As you suggest, however, it certainly would be legal to discipline and even discharge employees who fail to show up for work on time.
Another legal option would be to make tardy employees wait an additional period before allowing them to start work. This would encourage them to arrive on time, but it does not sound like it would be consistent with your need to provide timely child supervision.
--Stacy D. Shartin
Employment law attorney
Seyfarth Shaw
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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 www.latimes.com/shoptalk.
