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HELP! Exempt employee rights with NO PTO policy California

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  • HELP! Exempt employee rights with NO PTO policy California

    I currently work as an exempt employee for an employer who has no bona fide PTO policy.

    I recently accepted a job offer and the start date is at the end of this month (August 30). I have a two week vacation scheduled that leads up to the start date at my new job.

    I've had this vacation on the book for over 6 months and have been at the company for going on 2 years and have taken almost no time off. I feel I have earned this vacation and it should be paid to me.

    However, because of the lack of PTO policy I know that I will not get paid if I give notice before taking my vacation.

    Based on what I've read, my employer can also dock my wages if I quit after vacation (before receiving my paycheck on August 31).

    My question is: If my employer provides me a company laptop with the expectation that I will do some work (check emails/approve expense reports) while on vacation, do they still have to pay me for my vacation if I quit when I get back?

    It's a really tough situation to be in. I haven't been treated well at this company and would like to get paid for a vacation I feel I've earned. Thanks
    Last edited by SDSurfer; 08-02-2017, 10:20 AM.

  • #2
    If you do not work and your employer does not have a PTO policy that banks PTO time and has a policy not to pay out time taken on a vacation during your last 2 weeks "at work", I don't see where you have any recourse. There are no earned wages to dock. So it's more of the fact that you didn't work any in a full pay week for personal reasons which is a legal reason to dock...as is the first or last week of your employment.

    Generally checking email, etc while on vacation is considered work in CA. Your employer doesn't have to allow you to do that work, but if you do (not just expected), you would have a case to be paid. But you better be able to prove that you did actual "work". That is, actually respond to voicemails, emails, etc. If they have a policy that you should not take a laptop on vacation and do no work while out, then you also have to consider that.

    In the end feelings about what should happen unfortunately don't really matter. It's what actually happens that matters.

    personally I would give the notice, but that's just the type of person I am. I believe it is a small world and that you never know who you will run into at another job someday. Or if you will need a good reference if the next job doesn't work out.

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    • #3
      Originally posted by hr for me View Post
      If you do not work and your employer does not have a PTO policy that banks PTO time and has a policy not to pay out time taken on a vacation during your last 2 weeks "at work", I don't see where you have any recourse. There are no earned wages to dock. So it's more of the fact that you didn't work any in a full pay week for personal reasons which is a legal reason to dock...as is the first or last week of your employment.

      Generally checking email, etc while on vacation is considered work in CA. Your employer doesn't have to allow you to do that work, but if you do (not just expected), you would have a case to be paid. But you better be able to prove that you did actual "work". That is, actually respond to voicemails, emails, etc. If they have a policy that you should not take a laptop on vacation and do no work while out, then you also have to consider that.

      In the end feelings about what should happen unfortunately don't really matter. It's what actually happens that matters.

      personally I would give the notice, but that's just the type of person I am. I believe it is a small world and that you never know who you will run into at another job someday. Or if you will need a good reference if the next job doesn't work out.
      Thanks....so for a little bit of context, I had to jump through hoops to get this time off approved. I did a little write up 6 months ago indicating that I would approve expense reports while on holiday assuming that I have the wifi capabilities (I'm travelling oversees). We use Concur, so my review of these reports would be time stamped and logged in their system.

      They don't have any policy about not working on vacation. There is no policy on PTO other than stating that "We have no PTO policy".

      If I come back and tell them I quit, and I have proof that I checked expense reports because of the time stamps in Concur do you believe that I would get that time paid? (even if I only worked 30 minutes a day for example)
      Last edited by SDSurfer; 08-02-2017, 10:40 AM.

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      • #4
        You might need to talk to CA-DLSE directly. Past that:

        - CA is a legally interesting state to have no formal vacation/PTO policy. If ANYONE at work has EVER received vacation/PTO, then the CA-DLSE hearing officer is allowed to infer not only that there is a policy, but to determine what that policy is. In CA, it is almost always a good idea for the employer to have formal policies on just about anything, to close doors if nothing else. Not having a written policy is legally not the same thing as not having a policy.
        - Under federal law (FLSA) absent a formal paid leave policy, employers cannot legally dock partial days worked.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

        Comment


        • #5
          Originally posted by DAW View Post
          You might need to talk to CA-DLSE directly. Past that:

          - CA is a legally interesting state to have no formal vacation/PTO policy. If ANYONE at work has EVER received vacation/PTO, then the CA-DLSE hearing officer is allowed to infer not only that there is a policy, but to determine what that policy is. In CA, it is almost always a good idea for the employer to have formal policies on just about anything, to close doors if nothing else. Not having a written policy is legally not the same thing as not having a policy.
          - Under federal law (FLSA) absent a formal paid leave policy, employers cannot legally dock partial days worked.
          I should have done this earlier but I looked at our handbook (that I signed) and found this as the definition of our PTO Policy:

          XXXX does not maintain a formal paid time off or vacation policy for personal absences. Employees should coordinate unpaid time off, as needed, with their supervisors. Salaried exempt employees are paid for every week in which they perform any work, regardless of any time missed. Except for Paid Sick Leave, Jury Duty and Bereavement Leave, hourly, non-exempt employees are only paid for hours actually worked.


          Under the definition of Salaried, Exempt Employees in the handbook i found this:
          Exempt employees are paid on a “salary basis” and as such, regularly receive a predetermined amount of compensation each pay period. Generally a salaried, exempt employee will receive his/her full salary for any workweek in which he/she performs any work, regardless of the number of days or hours worked. A salaried, exempt employee may not be paid for any workweek in which he/she performs no work, subject to XXXXX benefits programs and policies. Salaried, exempt employees do not receive overtime compensation and may have to work hours beyond their normal schedules as work demands require.

          To me this reads as though I can put my notice in on a Monday at the end of day and be paid for that full week even if they tell me that they don't want me to work out the two weeks notice that I am giving them. Do you agree?
          Last edited by SDSurfer; 08-02-2017, 01:10 PM.

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          • #6
            They said generally and that falls outside of that "generally"....federally, one of the reasons an employer CAN dock is in the first or last week of work. So no, if you just work Monday, they would not have to pay you for the whole week if it is your last week (either your choice or theirs)

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            • #7
              Originally posted by hr for me View Post
              They said generally and that falls outside of that "generally"....federally, one of the reasons an employer CAN dock is in the first or last week of work. So no, if you just work Monday, they would not have to pay you for the whole week if it is your last week (either your choice or theirs)
              So if I work a couple hours (verified by Concur time stamp) while I'm on PTO and give them my notice through email, they will have to pay me up through that time?
              Last edited by SDSurfer; 08-02-2017, 01:18 PM.

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              • #8
                It also reads to me that I could give no notice and as long as I did a little bit of work while on vacation I could get paid for that time. Correct?

                I haven't decided what I'm going to do yet. I'm weighing all options

                Comment


                • #9
                  If we are talking about CA law only, then the only useful source of information is CA-DLSE. Your policy is whatever they say it is. I will say that is an exceptionally poorly written policy. Me saying that does not change that FACT that the policy is whatever CA-DLSE says it is. IF your company has a vacation/PTO policy (yours does) then CA law REQUIRES a fixed amount of accrual each year. If your policy is not clear on this point, and yours is not, then CA-DLSE gets to make up a number.

                  I understand you want someone on this website to give you some magical answer that your company is required to accept. Only CA-DLSE can do that.

                  As far as the feds are considered, your company has a policy, it just might not be valid under federal rules. The general rule is that the feds cannot dock for partial days not worked, UNLESS a valid leave plan is in place. No one on this website can tell you if federal DOL-WHD considers the policy valid. If someone was trying to write a valid policy they managed to miss all of the key points.
                  "Reality is that which, when you stop believing in it, doesn't go away".
                  Philip K. **** (1928-1982)

                  Comment


                  • #10
                    Originally posted by DAW View Post
                    If we are talking about CA law only, then the only useful source of information is CA-DLSE. Your policy is whatever they say it is. I will say that is an exceptionally poorly written policy. Me saying that does not change that FACT that the policy is whatever CA-DLSE says it is. IF your company has a vacation/PTO policy (yours does) then CA law REQUIRES a fixed amount of accrual each year. If your policy is not clear on this point, and yours is not, then CA-DLSE gets to make up a number.

                    I understand you want someone on this website to give you some magical answer that your company is required to accept. Only CA-DLSE can do that.

                    As far as the feds are considered, your company has a policy, it just might not be valid under federal rules. The general rule is that the feds cannot dock for partial days not worked, UNLESS a valid leave plan is in place. No one on this website can tell you if federal DOL-WHD considers the policy valid. If someone was trying to write a valid policy they managed to miss all of the key points.
                    Thank you, this is helpful information. We definitely have no PTO accrual at all. What I quoted you is the only "policy" we have in writing regarding PTO and this is located in the employee handbook that everyone signs.

                    I'm pretty sure leave is mentioned in the handbook as well but didn't look at it as I wasn't aware that it had any bearing on whether they could dock my pay for if I took vacation. I will take a look and post specifics about leave tomorrow.

                    What do you recommend I do? Call the California Labor Commissioners office and run my scenario by them to see what I can do?

                    Comment


                    • #11
                      Originally posted by SDSurfer View Post
                      Thank you, this is helpful information. We definitely have no PTO accrual at all. What I quoted you is the only "policy" we have in writing regarding PTO and this is located in the employee handbook that everyone signs.

                      I'm pretty sure leave is mentioned in the handbook as well but didn't look at it as I wasn't aware that it had any bearing on whether they could dock my pay for if I took vacation. I will take a look and post specifics about leave tomorrow.

                      What do you recommend I do? Call the California Labor Commissioners office and run my scenario by them to see what I can do?
                      State labor departments will not give you a definite answer so even if the person on the other end of the phone agrees with you, you will still have no proof and a fight on your hands.

                      I understand the company has treated you poorly but it sounds like your vacation won't be relaxing if you have to make sure you are checking email or approving time off. Not to mention all the planning about the timing of you are giving notice and how you are giving notice.

                      Then when you return you will need to file a claim with the state labor board and let it work its way through the system. There will be paperwork, probably a phone call or two before a decision is reached.

                      Sometimes it is better for your peace of mind to cut your losses and drop it.

                      Comment


                      • #12
                        Originally posted by HRinMA View Post
                        State labor departments will not give you a definite answer so even if the person on the other end of the phone agrees with you, you will still have no proof and a fight on your hands.

                        I understand the company has treated you poorly but it sounds like your vacation won't be relaxing if you have to make sure you are checking email or approving time off. Not to mention all the planning about the timing of you are giving notice and how you are giving notice.

                        Then when you return you will need to file a claim with the state labor board and let it work its way through the system. There will be paperwork, probably a phone call or two before a decision is reached.

                        Sometimes it is better for your peace of mind to cut your losses and drop it.
                        I hear you, and before I read my handbook I was thinking the same thing.

                        But consider this: 1) I give my notice right before I leave on vacation. I don't wind up actually working out my 2 weeks (because my vacation is 2 weeks) and they hate me and won't be good references; or 2) I go on vacation, do a little bit of work and quit when I get back. They still hate me and won't be good references in this scenario either. I'm not willing to tell them any further in advance because I refuse to get walked out and not get paid for the time I would have worked leading up to my vacation.

                        At least under option 2 I have a very good chance at getting paid based on what I posted from our handbook. I don't really see how they would be able to NOT pay me based on what they have written there. Even if they try and fight it, at least I have a chance of getting some money out of it.

                        I'm still not sure I follow why anyone thinks I wouldn't get paid for that time off based on what's written in the handbook. (if I can prove that I did any work, which I could and they know that without me telling them)

                        I don't really see what I have to gain by telling them right before I leave other than piece of mind (which could backfire and create a big **** storm just as I'm leaving for vacation and cause me stress during my time off)
                        Last edited by SDSurfer; 08-03-2017, 07:36 AM.

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                        • #13
                          If you want us to guarantee that you can take 2 weeks of vacation, check a few emails and quit upon return and still get paid for those final two weeks, you are out of luck. Company policy is not binding and even if you eventually get the DLSE to agree that you worked, it is unlikely you would be paid for the days you did not work and it could take a considerable amount of time before you even see that money if at all.
                          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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                          • #14
                            Originally posted by ElleMD View Post
                            If you want us to guarantee that you can take 2 weeks of vacation, check a few emails and quit upon return and still get paid for those final two weeks, you are out of luck. Company policy is not binding and even if you eventually get the DLSE to agree that you worked, it is unlikely you would be paid for the days you did not work and it could take a considerable amount of time before you even see that money if at all.
                            Kind of pointless to even have a company policy if it makes no difference and they can still dock your pay, no?

                            Again, if I went in and approved 1 expense report per day for the 10 days I'm on vacation then I technically would have worked every single day. I don't see how they can't pay me based on that. Concur would time stamp every receipt I reviewed and every approval I gave. I don't see how they get away with not paying me in that scenario. Agree or disagree?

                            Comment


                            • #15
                              Your questions have been asked and answered. Now you are just getting to a pointless place where you are expecting anonymous strangers on the internet to give you some exact way to do what you are asking with no negative consequences to your pocketbook.

                              Many of us have given our viewpoints. Nothing is guaranteed, especially with some possibility of the situation NOT going your way.

                              Only you (your employer and DLSE) can decide what to do from here on out. Personally I wouldn't play this game.

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