Hello, I am a full-time permanent employee, at my job for a little more than a year, and recently took a week of vacation. On the following paycheck, I noticed that no vacation time accrued during that week I was off. Our HR people told me that employees who take an entire 40 hours' vacation in one workweek cannot accrue vacation at the same time. Is this legal? Apparently I would have accrued time that week if I took only four days off, or if I took four vacation days and one sick day. This policy is in force only if employees take five consecutive vacation days. Our employee handbook explains the rate of vacation time accrual, but says nothing about this practice. Any advice? Thanks very much in advance.

Since employers aren't even required to offer vacation, they can set the rules as to how it is accrued.

Advice - accept it. This is completely legal and not even all that uncommon.

Thanks very much, Betty3 and cbg. I suspected the practice was legal, but I am miffed it wasn't in the handbook or else I would have manipulated my time off differently. Thank you, again, for your help. RobV

You're welcome.

Thanks very much, Betty3 and cbg. I suspected the practice was legal, but I am miffed it wasn't in the handbook or else I would have manipulated my time off differently. Thank you, again, for your help. RobV
It may not be legal, I would run it by an attorney if you are riled about it. A question like that could be answered over the phone at no charge.

JoeC

What do you think is illegal about it, Joe? Where are you finding a law that requires an employer to accrue vacation during time the employee is not at work?

Implied contract theory handbook. Cant change the rules once the time is put in. I am pretty sure any Massachusetts employment attorney can give a yea or nae answer over the phone.
JoeC

I'd agree with you that the potential existed if the handbook spelled out the terms under which vacation would accrue, but in the absence of any description of the accrual terms I doubt it. I will grant you that it's more likely in MA than many states but even in MA the employer is not required to provide every detail of every policy and is not generally held to what they didn't say in the first place.

The poster can certainly ask an attorney if they like but I wouldn't hold out much hope of a favorable answer.

A situation like the poster is describing should be clearly spelled out though. If it is not then the employer can not say well its not there so it exists. Especially since the guy did not even find out until after he took the vacation.

I don't know how much vacation time is earned in a week my guess would be very little. Fifteen minutes to a half hour? The question arises how many employees are there? If it is a 1000 or more then thats a good chunk of change. That may interest an attorney. We have a Massachusetts attorney on the board let me see what he thinks. I just P.Md Phil he may shed some light.
JoeC

I still think that it's very unlikely that the failure of the employer to spell out the terms of the accrual would make it illegal for them say that vacation doesn't accrue during a period when the employee isn't working. But if Phil says otherwise I'll accept that.

I don't know of any cases on that specific accrual point. If the policy was drafted by the employer, without input by the employee, then any ambiguity in the policy must be interpreted against the employer. That's very clear under MA law. It has been clear since the 50's, and we just had another Supreme Court decision on that point in 2003. Take a loook at EDS v. AG, 440 Mass. 1020 (2003), where the court interpreted an ambiguity around the word "leave" and whether it applied to someone who was fired. The court ruled that an employee could understand the word leave to mean only someone who voluntarily leaves and not someone who was fired.

The question here, is whether the point on accrual was ambiguous. Although it seems odd to accrue vacation while you're on vacation, its a fairly common practice, so I tend to agree with Joe on this one. The law probably supports your claim that you should get vacation.

Of course, what to do about that is another matter altogether.

Phil

I know I said that I'd go along with Phil, but I'm still waiting for anyone to show me that it is ILLEGAL to fail to accrue vacation during a vacation.

I'm okay on potential contract breach. I'm not okay on ILLEGAL. To me, that implies that in ALL circumstances, the employer MUST allow vacation to accrue during a period of time not worked. And I'm sorry, but I still don't believe that is so.

Looks like I wasn't clear.

I don't think it would be found illegal per se to have a policy that no vacation time accrues while an employee is on vacation, and I believe that a plan could specifically except something like that without any problem to the employer (although I reserve me right to argue otherwise in a court).

My only point is that if the plan isn't clear, then it might be interpreted in favor of the employee. Then, if the employer fails to pay for the accrued vacation, they'd be liable for unpaid wages. Although vacation is governed by the terms of a written or verbal plan (which are interpreted like a contract), once its earned it becomes a wage. And, if it isn't paid, non-payment of wages is illegal. I think the upshot of this conversation is that if employers are clear - that vacation isn't accrued while on vacation - there's likely nothing illegal about that.

You and I are in agreement. No surprise there.

What Phill is saying if the terms are ambiguous, or not written in the hand book or agreed orally by the parties, then the courts error on the side of the employee. As of now there is no specific case in Ma. that can be pointed to, but under a common law contract scheme the law favors the employee. With the exception of Louisiana every state has common law remedies under contract,and tort.

Vacation are the same as wages they are earned it can not be taken away after the work is completed. Going forward is different of course. The question remains is it worth pursuing? That is individual question.

I don't like to say illegal, I like to say out of compliance. Because there is no punitive remedy available that I know of unless it was willful violation.

I'm not okay on ILLEGAL. To me, that implies that in ALL circumstances, the employer MUST allow vacation to accrue during a period of time not worked. And I'm sorry, but I still don't believe that is so.
No one is saying that at all. Once an employer agrees to vacation acures for time not worked he is bound by the terms of the agreement. The employer can not welch once the benifit is earned. The employer is entieled to change the policy but can not change the policy after the vacation time is earned or while the guy is on vacation. The key word is earned. It is no differnt than your salary if the employer agrees to $10. per hour,at the end of the week he has to pay that. He cant turn around after the salary is earned,and change the terms to $7.00 per hour. Benifits that are earned are the same as salary.
JoeC

Joe, you're the one who said, "It may not be legal". The definition of not legal is illegal.

I am very well aware that in MA (though not in all states) earned vacation is considered wages. I'm the one who spent weeks trying (and eventually succeeding) to convince our upper management (in a state where use it or use it policies are legal) of that. However, that's a whole different story than how an employer must allow vacation to accrue. How vacation accrues is not affected by what happens to it after it is already earned.

I know the definitions, I wrote "I like to say out of compliance" never said it was the legal definition. Illegal conjures up images of slamming prisons cells.
If you are very well aware that in Mass. earned vacation is considered wages. Then whats up with this post:
Advice - accept it. This is completely legal and not even all that uncommon.
By the way it is all states not just a few states. The employer can not welch on earned benefits or salary any where in the United states. It may be common unfortunately, but it is not acceptable,and courts will award judgments for plaintiffs when they sue.
JoeC

There are quite a few states where vacation is NOT considered earned wages and in which use it or lose it plans are acceptable. MA is not one of them, I do agree. I have worked very hard to convince several employers of that (with a fair amount of success, as a matter of fact). But such is not the case in all or even most states (and I have experience with quite a few). Courts in states that specifically state that employers have the right to withhold unused vacation at termination are not going to then turn around and say, it was earned, you have to pay it out.

In any case, we were not talking about earned vacation. My comment was directed toward the policy of not allowing vacation to be accrued during a period when the employee was not working. It is NOT illegal to have such a policy. There is no requirement that time be earned during a period of not working. There is no requirement that time not earned be paid out.

It may not be legal were your exact words in your first post in this thread. I don't know how to take them other than to say that the policy is illegal. And if I made such a statement and then tried to say I never said it was illegal, you'd tear me to shreds. And no prison cells required; something can be illegal under civil law as well as under criminal.

I can see your point about the implied contract, belatedly. I'm still not 100% convinced that a court WOULD find for the employee, but I agree there's a reasonable chance, particularly in MA. But you didn't say, You may have a violation of an implied contract, you said, It may not be legal.

My comment was directed toward the policy of not allowing vacation to be accrued during a period when the employee was not working. It is NOT illegal to have such a policy. There is no requirement that time be earned during a period of not working. There is no requirement that time not earned be paid out.
Your not getting this. The employer establishing how vacation is accrued it is not illegal , but it can not be imposed after the vacation is earned. When the existing vacation policy stipulated that in fact the time earned on vacation is company policy or the terms are ambiguous. That policy can not effect already existing vacation. Just like nothing in the hand book (ASSUMING) says any overtime worked adds to vacation accrual the employee can not take it upon himself to take vacation for overtime hours worked through out the year,unless the policy say otherwise either orally or in a handbook.

Here let me try an analogy you go into the store,and purchase a Coke for $1.00 the price is clearly marked. You hand the cashier a five. He gives you $ 3.00 change you walk out and notice you were shorted a buck. You go back and tell the cashier you charged me $2.00 for a $1.00 coke. The cashier says yes I decide to raise the price of coke to one dollar because I could use that dollar. You say give me my dollar! He says no. You sue for the dollar. Now who has a case you are the cashier? Now it is not illegal to charge $2.00 for a coke, but you cant say the coke is a dollar and charge two. Likewise in the posters situation.

Try another one a bank claims to give you 4% fixed interest rate on the money held in savings, now you get a statement, the bank only gave you 3% you call and say the terms are 4% the bank says "well we did not like that so we changed it". Now the bank can give 3% but they can not say 4% then turn around and only give 3%.

You contact an attorney the attorney says "Advice - accept it. This is completely legal and not even all that uncommon" . Would that be sound advice ? No of course not.
JoeC

You're the one who's not getting it, Joe; either that or your well known bias against employers is getting in the way.

You are jumping to the conclusion that because the poster didn't know about the policy, the only possible answer is that the employer backtracked and implemented the policy retroactively. You're not considering the possibility that it is a well established policy that the poster simply didn't grasp. The fact that the handbook did not spell it out in full (and I agree that it should have) does not mean that it hasn't been utilized for other employees in the past.

And before you accuse me of bias, I am not saying this IS the case. I don't know if it is or not. But likewise, you don't know that it ISN'T the case. All we KNOW is that the poster was not aware of it.

And for the record, if I had a dollar for every employee who came into my office or e-mailed me or phoned me or in some way contacted me to claim that I never told them about such and such a policy or that there never was such a policy, and I was able to reach into the employee's file and pull out a copy of the policy in question WITH THE EMPLOYEE'S SIGNATURE ON IT, I could retire.

While granting that ambiguity tends to go in favor of the employee in this state, your insistance that the policy was retroactive is not borne out by the facts. IF (underline IF) the employer is able to show that it was a well established policy that had been utilized previously, that's going to show for the employer.

I've already conceded that I may have overstated things initially but your position is not a hard and fast as you're trying to make it either.

I don't have a bias against employers, I have bias against Welcher's. Now if she is hiring how could I have a bias? Oh by the way she and her associates will be appearing in all my posts. Until you stop screwing around with my posts. You dont like it you take it up with the owner.
JoeC