Legal Question in Employment Law in California

If my weekly punches total anything less than 40 hours my company is making me add vacation pay in 1 hour increments so my total pay is over 40 hours. They are using up my vacation pay and now I won't be able to afford to take a vacation this summer because I will have to go a week without any pay. Can they make me use my vacation?


Asked on 5/01/12, 9:23 am

1 Answer from Attorneys

I am guessing you are not an accountant. If you were, you would realize that whether they pay you for not being at work on a weekly basis, and deduct it from vacation so you have to take vacation without pay, or they don't pay you for the hours you don't work on a weekly basis and pay you for the time you are gone on vacation, your total pay is the same. Either way you have the same amount of paid time off and unpaid time off. They are just deciding when your time off is paid and when it is unpaid. They are allowed to do that, of course.

The only legal issue is whether you are an exempt employee or non-exempt, under overtime wage and hour laws. If you are non-exempt, what they are doing is perfectly legal. If you are exempt, then they cannot make you take paid or unpaid time off in anything less than one day increments. If you work any part of a day they must pay you for a day worked. They cannot break it up into hours worked and hours off; that makes you a non-exempt hourly employee. That does not mean they cannot require you to record time in hours; they just can't calculate pay in units smaller than a day. Of course if you are exempt and your employer expects you to put in 40 hours and you consistently put in less per week, they may have to pay you your full vacation instead of docking it on a weekly basis, but you also may well find that they suggest you use your vacation to find another job.

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Answered on 5/01/12, 9:49 am


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