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non exempt vacation time New Jersey

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  • non exempt vacation time New Jersey

    I am a non exempt employee receiving per diem rate/no salary. I have taken vacation, unpaid, in the past without approval from superiors. They are now telling me they can tell me when and if I can take off even though it is unpaid and I do not receive a salary. Is this allowed?

  • #2
    Absolutely it is allowed. There are no circumstances whatsoever under which the law grants any employee, regardless of pay or exempt status, the right to take vacation time, paid or unpaid, without the approval of the employer.
    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
      The employer always has the right to say when vacation can & cannot be taken.
      (even unpaid time off)
      Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

      Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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      • #4
        I know it would lessen the number of threads this board would have, but do you ever get the feeling that 90% of these questions could be solved with a Google search?

        Comment


        • #5
          True, but there are a lot of garbage answers on the Internet. I have had tax protesters with their Internet cites showing that they are "sovereign" and cannot be taxed. I have seen photoshopped modified W-4s (available on the Internet) which turn off all federal, state and local taxes - they even require the employer to refund taxes previously withhold. For all we know, the posters with the "some guy said" statements got those statements off the Internet.

          My problem is not answering the question. My problem is answering the same question over and over and over again. Too much like a Greek myth for me.
          Last edited by DAW; 05-31-2011, 08:07 PM.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

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          • #6
            Originally posted by DAW View Post
            My problem is not answering the question. My problem is answering the same question over and over and over again. To much like a Greek myth for me.
            Ha, that's my issue. I agree there is quite a lot of terrible, false advice out there. I guess I could have more accurately said "do a search of the site's archives".

            I was going to ask who it was in the old Greek myth about the man who was forced to push a boulder up a hill only to have it roll back down and repeat this process for the rest of eternity. Then I realized that could be cured by a simple Google search. Sisyphus. I sometimes feel like Sisyphus.

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            • #7
              Thanks for the input

              FYI, I tried to google info but couldn't find information specifically for a per diem employee. I have no weekly hours. I just cover overages. They do not guarantee me any hours. It was always their policy in the past since they did not guarantee me hours/paycheck that time off was at my discretion.

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              • #8
                Well, whatever the policy may have been in the past, the new policy is still legal. You will not find that the law is different for per diem employees than for anyone else.
                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
                  Agreed. "Per diem" is just a dead language phrase meaning "per day". There are basically two big federal laws affecting paying employees. Under FLSA, "per diem" means nothing. FLSA looks (mostly) at minimum wage and overtime. Under FLSA, all employees are non-exempt (subject to MW/OT) unless a very specific exception which Exempts the employee from MW, OT or both can be supported. "Per diem" is not only not a FLSA exception, it is literally nothing at all as far as FLSA is concerned.

                  The other big "paying the employee" law is IRC. The phrase "per diem" actually means something here. Under IRC "qualified" expense reimbursement are those expenses that follow the "accountable plan rules". Under IRS, "per diem" is a "safe harbor" exception to the normal accountable plan rules. This is discussed in great detail in IRS publication 1542.

                  The problem is that while employers use the phrase "per diem" a lot, it is mostly legally meaningless in the way it is used. Most employees are non-exempt. They are generally subject to MW/OT rules. Paying someone "per diem" changes nothing legally.
                  "Reality is that which, when you stop believing in it, doesn't go away".
                  Philip K. **** (1928-1982)

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                  • #10
                    another definition...

                    In some areas of healthcare the term per diem is still used a lot, but it refers to how a person is scheduled to work. It doesn't refer to how they are paid, or to an expense reimbursement.

                    You might be full time or part time with a regular schedule, or you might be "per diem," meaning you work as a fill-in or as-needed. Many people are actually working upwards of 40hrs a week, but on a "per diem" basis. Most of our "per diem" staff work part time hours, and we don't allow them to go above 35 hrs in a week. Some places call these folks "pool" staff or "PRN staff," but many of us still call them, and the scheduling system "per diem."

                    The OP might be in this category.

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                    • #11
                      That could be. Or it could be something that the employer made up.

                      It still would not give her the right under the law to take vacation time without approval.
                      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


                      • #12
                        Clarification

                        I think the better way to put this is that I do not have vacation days. As a per diem healtcare worker , I choose when I am able to cover or not. I informed my boss that I was unable to provide coverage that week and she said that I had to. That might be the clearer way to put it

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                        • #13
                          With very few exceptions, any employer can make pretty much any employee work pretty much any hours that the employer wants. The very few exceptions are for things such as minor children employees, long haul truckers and airline pilots. Paying an employee on a "per diem" basis (or any other basis) has no effect on this.
                          "Reality is that which, when you stop believing in it, doesn't go away".
                          Philip K. **** (1928-1982)

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                          • #14
                            Gotcha. Do they need to put the new policy in writing? There is nothing in writing in our handbook re: policy for per diem employees/unpaid leave vs. paid time off. I spoke with HR who confirmed this

                            Comment


                            • #15
                              Gotcha. Do they need to put the new policy in writing? There is nothing in writing in our handbook re: policy for per diem employees/unpaid leave vs. paid time off. I spoke with HR who confirmed this

                              Comment

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