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H1-B and holiday pay California

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  • H1-B and holiday pay California

    I work for a University in California. Due to not receiving a grant I was given a termination notice for Jan 7th 2015. I managed to gain employment at a lab associated with the university starting on Jan 5th 2015. This new job at the lab required a H1-B visa transfer, job interview, offer letter etc. i.e. a new H1-B with new Receipt number and as far as I can tell a new job. The original university is refusing to pay me my owed unused holidays stating that they will just transfer them over to the new position even though I was going to resign from my old position on Jan 4th.

    The question is that given I have had to apply for a new visa (and hence I believe this must be a new employer/job) can they legally refuse to pay me my holidays? I even suggested that I resign two days before my new position starts so I have one day of unemployment and they gave some hand wavy argument that if I was not employed for a week or two I may be able to get them paid but any less then that and it didn't count.

    Many thanks

  • #2
    Let's be clear on semantics first, because it makes a difference.

    In the US, holiday pay means being paid when the company is closed for days like Thanksgiving, Christmas, and the like. If you're talking about two (or so) weeks of paid time off for rest and relaxation, in this country we call that vacation.

    Are you talking about holiday pay, or vacation pay, using US parlance?
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    • #3
      Vacation pay - Sorry, my Englishness coming through

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      • #4
        Not a problem - I just wanted to make sure we were talking about the same thing.

        Even in CA, the law does NOT say they have to pay out your vacation time on request. It says you can't lose it. You're not losing it - they're rolling it over into the same job. The fact that you needed a new visa does not, in and of itself, mean payout is mandatory. You still have the time - the employer is legal.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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        • #5
          This is just a job transfer and the law does not see that as a termination requiring payout of vacation. Your mileage may vary in your country of origin, but in the US, the interview and offer process is common for transfers and this is how 99.9% of the organizations would handle it. Different countries have different practices but here in the US, this is the standard. The bonus for you is that while your accrued leave isn't being paid out, you also aren't starting over at zero.

          If you had totally quit your current job with no expectation of returning and just coincidentally weeks later gotten another job at an affiliated lab, that would be different.
          I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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