Legal Question in Employment Law in California

I work for a small California Law Firm. I actually have two questions. 1st: When I was hired a few years ago I was verbally told the rules for the firm's vacation/PTO policy and I was told there was no max on time accrued. Other than for holidays and sick leave I have not used much of my PTO. Recently I was informed in writing that the office PTO policy has changed to a "use of lose it" policy with max of 320 hours a year. Anything over that must be used before the end of the year or the employee will lose any hours in excess of that amount. In my case I will need to utilize 5.5 weeks of vacation, not including national holidays, before the end of the year to avoid losing any PTO. I have already been told a payout of excess PTO is not an option. Do I have any other options? 2nd: Under the old policy employees could make up any of their time off, provided it was done within the same pay period. However, this was never put in writing. Under the new rules this option is no longer allowed. As I mentioned before we are salaried exempt employees, so we do not receive overtime benefits even though overtime was strongly encouraged and often necessary in the past. Under the new policy we are given set of hours per day we are allowed to work and not to exceed 40 hours a week. Any overtime worked will no longer be allowed without consent from the employer and we are still not entitled to OT benefits. Is this legal? I enjoy my job but I do want to protect my employee rights.


Asked on 1/06/10, 3:53 pm

1 Answer from Attorneys
Frank Pray Employment Law Office of Frank Pray

The firm may cap the total accrued PTO, but it cannot compel forfeiture of earned PTO. The difference is critical.

The second question probably is the result o the firm's realization that its "salaried exempt" employees were not legally exempt despite the titles. They have brought their practices into conformity with law. Yes, the employer may require approval for overtime, and does not have to provide a "make up time" option.

However, if you actually work the overtime, you must be paid the overtime wages. The employer may discipline you for repeated violations of the overtime policy however. On the other hand, if the employer is loading you with work, knowing you must work overtime to meet deadlines, and knows or should know of the overtime hours, it is deemed by law to have approved the overtime, and cannot then punish you for working the "implicitly" required overtime. Were the firm to punish you for asserting a right to be paid the extra hours when it allowed (or even required) those hours to be worked, you would have a "wrongful termination in violation of public policy case".

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Answered on 1/11/10, 4:25 pm


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