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Unpaid PTO & penalty questions, California

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  • Unpaid PTO & penalty questions, California

    I was laid off 3/24. My wage stub says I’d accrued 24 hours PTO but my employer refused to pay saying PTO was lost if not used. The Employee Manual says: “Regular full-time employees receive three paid personal days per year (pro-rated for the first year of employment). Amounts of unused paid time off do not carry over to the next year and will not be paid out at the time of termination.”

    My first pay stub of 2009 (my second year of employment) showed I was allocated 24 hours PTO, but vacation time accrued (increased) each pay stub. My questions:

    - Do I have a winnable claim for unpaid PTO and if so, would that be for 24 hours?
    - If I wait until 4/24 to file, is the 30 day salary as penalty mandatory or discretionary?
    - Assuming I win, can the employer deduct taxes and garnishments from PTO and the penalty?

    Thank you.

  • #2
    http://www.dir.ca.gov/dlse/FAQ_Vacation.htm

    4.
    Q.
    My employer's vacation policy provides that if I do not use all of my annual vacation entitlement by the end of the year, that I lose the unused balance. Is this legal?


    A.
    No, such a provision is not legal. In California, vacation pay is another form of wages which vests as it is earned (in this context, "vests" means you are invested or endowed with rights in the wages). Accordingly, a policy that provides for the forfeiture of vacation pay that is not used by a specified date ("use it or lose it") is an illegal policy under California law and will not be recognized by the Labor Commissioner


    ------
    - Do I have a winnable claim for unpaid PTO and if so, would that be for 24 hours? Yes
    - If I wait until 4/24 to file, is the 30 day salary as penalty mandatory or discretionary? CA-DLSE's discretion. In my experience, employees who deliberately drag this out, tend to not get the penalty. Send the employer a formal request. If it does not work, fine a wage claim. Let CA-DLSE worry about the penalties, because CA-DLSE certainly does not care what you (or I) think on this matter.
    - Assuming I win, can the employer deduct taxes and garnishments from PTO and the penalty? Yes.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

    Comment


    • #3
      RE: Formal Request

      Thank you very much for this info. I did verbally request the PTO during the "lay off" interview and was told they weren't going to pay it. Do I still need to put the request in writing?

      Regarding the penalty...if I make the written request, the employer denies it and I have to file a claim, would I be able to continue to litigate the penalty issue even if my former employer later decides to pay the PTO?

      Thank you.

      Comment


      • #4
        The potential problem is that the employer can just deny that the conversation ever occured. If I was filing a wage claim, I would want to be able to show CA-DLSE that I sent certified letter. I cannot say that this is necessary. I cannot say that this is not necessary. CA-DLSE will think whatever they think, and one of the things that CA-DLSE can think is that your employer (and not you) is telling the truth.

        I would not use the word "litigate", which implies courts and lawyers. You can file a wage claim and CA-DLSE gets to make a decision. The law is very clear that the penalty is not automatic and the decision belongs to CA-DLSE.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

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