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hrguy
08-13-2008, 04:09 PM
Hi,

My company is in the midst of re-evaluating our employee handbook. One thing that has come up in the last year is how to proceed with leave requests when the employee is out of accrued PTO.

For a brief summary of our existing PTO policy we do not allow negative balances so any requests without banked time must be taken as unpaid.

Here is an example of a problem scenario:
John has worked for us for 2 years and uses his PTO as he accrues it, taking at least one day per month. He has in the past year requested time off for two mini vacations on top of this and while frowned upon, got his days off and went unpaid. He was pulled aside and spoken to about his frequent requests for time taken he has not accrued and how that negatively effects the company and forces he coworkers to pitch in to help him pull his weight. It was stated that he would be denied leave for future requests he does not have sufficient PTO accued.

It's been a few months, he has continued to nickel and dime his PTO so that he has used all accrued time but has not gone negative. Now he is requesting 2 days off for later in the month and does not have any time available. An an employer in California, what are we allowed to do? Can we refuse this request and penalize him should he take the days off anyway?

Is there a limit in general to time taken off unpaid or laws that require the use of some Federal or State leave policy to allow this employee to abuse the system?

I thank you all in advance for any thoughts, links or laws you can share with me.

hrguy
08-13-2008, 04:31 PM
I believe my question is answered, at least in part on this page: http://www.dol.gov/esa/whd/opinion/FLSA/2005/2005_04_11_16_FLSA_timesheet.htm


The salaried employee handbook states that attendance is an essential function of every job, and their performance appraisal system includes a core goal of dependability, which takes into account attendance and punctuality, among other factors. Thus, a FLSA overtime exempt employees performance evaluation may be adversely affected by non-FMLA-qualifying absences from work of full or partial days. An exempt employee may also receive corrective action for submitting inaccurate timesheets, including failure to correctly record absences of full or partial days, or for failure to obtain permission for unpaid leave (i.e., for being absent without leave).

I think we'll need to add a statement like that into our handbook and create a "no-fault" leave policy. Of course this won't apply to employees who are protected by the ADA, but for employees requesting time off constantly for events like concerts etc., we can deny and terminate should they leave for a period as described in that "no-fault" policy without permission.

Does that sound right?

DAW
08-13-2008, 04:53 PM
I am going to suggest that maybe you are over thinking this. Salaried Exempt employees are covered by the 29 CFR 541.602 regulation. (http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_541/29CFR541.602.htm) Under this regulation it is perfectly legal for the employer to dock the salary for entire days voluntarily not worked by the employee.

Vacation/PTO however is not a function of federal law at all. Federal DOL is very clear that vacation/PTO has nothing to do with them. I will include a pointer to one of the many opinion letters (http://www.dol.gov/esa/whd/opinion/FLSA/2005/2005_01_07_7_FLSA_PaidTimeOff.pdf) on this subject.

Your employee is voluntarily choosing to not work some full days. Under federal rules, you can dock the salary for those full days (but not partial days). End of story. Do not try to complicate things by creating a legally non-existent link between the vacation/PTO balance (which CA cares about) and the docking of salary (which CA agrees is covered by the federal regulation).

And not your question, but it is a VERY bad idea to let employees go negative for vacation/PTO. For exempt salaried employees only taking partial days only you might not have a choice. Just remember that CA has deduction rules which might block the employer's ability to later recovery the advanced vacation/PTO.

hrguy
08-13-2008, 05:17 PM
Thank you for your information.

We have our PTO policy setup to allow for partial days (4 hours) and full days.

What we are really trying to determine is not can we dock their pay, because we can and they are always aware this is an option. We are looking to see what we are allowed to deny. Can I tell someone that because they do not have the time available, and have abused their core work hours in the past by taking more time off than they are eligible for, that they cannot take a day as unpaid? Basically denying them the day(s) off? And at what point if that is the case can we tell them they will be terminated for unexcused, or ungranted leave?

Also, my take away from this statement -

Your employee is voluntarily choosing to not work some full days. Under federal rules, you can dock the salary for those full days (but not partial days). End of story. Do not try to complicate things by creating a legally non-existent link between the vacation/PTO balance (which CA cares about) and the docking of salary (which CA agrees is covered by the federal regulation).

Is that even if the employee has the time in PTO, but we do not grant the day off to them we can dock their paychecks for the ungranted days off? I thought that if they had the time available, we had to allow it, though we could try to negotiate days that work better for the company for them to be absent.

I want to stress we are not a strict place to work, we just want to find a way to limit (within our legal rights as a company) the abuse of our PTO plan. We've worked hard to make it a fair and pleasant benefit for all employees, but some just try to take advantage of it.

hrguy
08-13-2008, 05:28 PM
I should add our PTO allows for people to request to take half days off, though we would NOT deduct a half day if someone came in and left early for illness, personal emergency, etc. We would only do so if they requested to leave early for a non emergency personal matter and wished to use PTO for a half day.

DAW
08-13-2008, 05:32 PM
Can I tell someone that because they do not have the time available, and have abused their core work hours in the past by taking more time off than they are eligible for, that they cannot take a day as unpaid? Basically denying them the day(s) off? And at what point if that is the case can we tell them they will be terminated for unexcused, or ungranted leave?

There are more qualified people then me on this website to answer this particular set of questions. But I will give you the obvious (and legally correct) answer.

"Of course you can tell your employees to work pretty much any hours you want them to. Of course you can tell an employee to not take certain time off (unless FMLA or such is active). And of course you can fire people for not following orders.

Now, can we take something simple and obvious like the above statements and [bleep] it up? Of course. I have had bosses who could get the company sued before morning coffee on a regular basis. A good general rule of thumb is to have someone who knows what they are doing to write a policy and procedures manual and follow it. A custom manual by a qualified professional is arguably best, but a $100 canned HR manual from Amazon is a heck of a lot better then a do-it-your-self by a non-professional.

Do not assume that your line managers can be trusted to take discretionary actions. Do not assume that your line managers either know or much care what the law says. What labor laws that are in place happened after a whole lot of line managers went out of their way to convience Congress that the line managers judgement on things like racial and sex discrimination could not be trusted absent a gun to their head.

hrguy
08-13-2008, 05:43 PM
Heh, yes I have had those bosses too. ;)

We have a custom manual that we update on a yearly basis either to include new laws, or fix problem areas (such as this one) that we have come up against in the previous year. Typically I do some research to start the edits to the manual prior to handing it off to our lawyers. They're so dang expensive anything I can do to get this setup before they touch it can really help. ;)

We aren't really a fire company, at times just amending our policies and pointing to them helps discourage people from abusing the system. Though there are some people who cannot abide by rules and have to be termed.

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