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trading sick time for vacation Colorado

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  • trading sick time for vacation Colorado

    The small company I work for has recently been sold and as part as the buyout the old owners have to close the payroll and everyone's has to start fresh with the new owner. Part of this is everyone has to apparently be paid for their remaining vacation time (time earned). Sick time will be lost

    The old owner has decided the he will just take any hours of sick time that were used and deduct them from any remaining vacation prior to payout - ie if the year was started with 10 hours sick leave and 40 hours vacation and someone called in sick one day so they would still have 40 hours of vacation but he would now only be paying them for 32. Is this legal?

  • #2
    Under your state laws, yes, it's legal. Colorado cares nothing at all about paid sick leave and only cares minimally about vacation. (BTW, this is the same in most states - CO is not alone in this by any means.) Since this is being established as a new policy going forward and you are being notified of the change, I can't find anything in CO laws that would make this illegal.
    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
      It's not really a new policy- has nothing to do with the new owner or business. This is the closing of payroll from the old business. New owner is going to an accrual system and not sure what his policies will be otherwise.

      This is a retroactive policy from the old owners. I'm assuming from your post though still no dice.

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      • #4
        That MAY be a different story. Sorry if I misunderstood. CO does not care in any way how much paid sick or vacation time you get, and does not require an employer to establish a policy (and they make it clear that it is not required). However, CO does care that an employer honor the policies they voluntarily set in place, and is one of the few states that requires the payout of unused vacation time at termination. This is, however, not a termination and I don't want to make the call on whether that payout is required in this situation. CO does not have the law that, for example, CA and MA have, which states that vacation, once earned, cannot be lost (and MA even has an exception to that).

        What I would do in your place is check in with the CO DOL and see what they have to say.
        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.

        Comment


        • #5
          This is more a question for cbg: if the new owner/entity of the business has a different tax ID, and the OP's future paychecks are being issued by that entity, then why wouldn't it be a termination (from the prior employer)? On the other hand, if the new owner retains the same tax ID and is, in effect, the same employer, I would agree there is no termination of employment. In that scenario, I think the new owner (same entity) may be bound by the prior vacation policies but is certainly free to change the policy prospectively. (Colorado isn't my state, I'm coming at this with a California bias.)
          While I may work for lawyers, I am not an attorney. Comments I make are based on my working experiences and should not be interpreted as legal advice.

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          • #6
            new tax ID and business name; I think that is why we are getting the payout (heaven knows we would not get it at all if there was anyway our old boss could get out of it).

            That was why I had the question about his trading in sick time that had already been used retroactively for vacation hours that were still owed for on the books. I am thinking we are being viewed as terminated by the old business & rehired by the new & therefore are due for the accumulated vacation left as time earned on the books. I did not think that could be taken away from an employee, which is what he is doing by taking back sick time that has already been used and paid for. I am aware that fair, nice, and legal are unfortunately different things though.

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            • #7
              another thought...

              and actually here is another angle to approach the same problem.... I did go to our state DOL and was trying to look at statutes; now I know why lawyers require so many paralegals each....
              anyway while trying to wade through and find something even remotely relevant I ran across something regarding allowed payroll deductions. C.R.S. 8-4-105 (2014)
              that statute says that an employer and automatically deduct from an employee's paycheck to pay for:
              1. tax stuff
              2. automatic retirement enrollments
              3. loans that have been made to the employee
              4. theft by the employee
              that's it. So in light of that statute, If an employee were expecting to be paid x amount for y number of hours of vacation that is considered time earned and therefore wages in CO, would deducting used sick time from that be an inappropriate payroll deduction?

              Don't know if it even begins to apply, but not being a lawyer, I don't know why not

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              • #8
                It all depends on CO's definition of a termination, and I don't know what definition they use. That's why I'm recommending the OP contact the state DOL for a ruling.

                We used to have an expert on CO here, but he's moved on.
                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.

                Comment


                • #9
                  OP...I'm late to your question ...here is a soft view ....I think you have enough of a problem to cross check it with a CO pro as to Wheter your boss is too creative in his accounting .and I'm putting a lot of weight on your view that boss would not pay out voluntarily ...and the business is closing as such.

                  1.CO DOL may or may not have a workable,answer as to what constitutes a termination ..good place to start...
                  1.1 CO DOL has a form for employer to fill out that may address it sort of backwards..a mere sale of stock is not change ..but there are lots of ways and wrinkles to a sale,or,acquisition FAR BEYOND any scope here.
                  1.2 Lets oversimplify..if firm A will no longer exist in any form then your relationship is terminated as A no longer exists. oversimplified, but you get the drift, ( There could be other answers and my firm bought lots of smaller operators in multiple states with 101 wrinkles ..no need to,go there)
                  2. If there as a written policy to vest and pay out an ascertainable amount of vacation , the Supreme Court of CO pretty much mandated employer must do so and that also now appears in wage payment rules.
                  3. Termination of the relationship,triggers the pay out ..there may be other possibilities such as the buyers terms in the deal
                  4. At least as to simple math, to reconvert an accrued benefit by a charge off to sick pay is a form of cutting an accrued benefit . Now there might be something in policy which allows for same..but so far that's not in picture or question you post?....To me it is a very good point you need to,address .

                  Yes, my gut says you are being hosed...but guts so not count..details and facts do.

                  4.1 Indirectly you raised issue of willfuL / pending failure of employer to pay wages due via the new math I suggest you pay attention to that point and raise it with a more competent resource .Sooner not later.
                  4.2 I have no doubt employer could pass a new policy as to new pay/benefits going forward ..but that is not your question
                  .

                  5. Keep,darn good records off site in.a safe place...you may need to prove there was such policy to allow,accrual or banking of,vacation ..that no CO law that requires same..just that if there is such a policy, the employer must follow it and pay out at termination among other things

                  5.1 At least the tone. Of your post is that a termination of your employment relationship with current employer is under way..I would assume that posture until facts support otherwise.

                  6. Do NOT snooze ....there are no upsides to that.

                  Comment


                  • #10
                    Colorado wage act sec 8 -4 -109 (1)(a) may be on point as to one definition of what turns on the termination light for wage payout purposes. Im not a lawyer...just a starting point suggestion.

                    note with extreme care the issues and steps in sections that follow above if employer fails and refuses to get it right and your duties as well.

                    Find a resource qualified to comment on CO specific issues ...even if my guess is close it may not be good and reliable and close only counts in horseshoes.

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