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Vacation pay, meal break, and time compensation question

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  • Vacation pay, meal break, and time compensation question

    Edit: Could a mod add Massachusetts to the thread title? I'm not sure how it didn't get included. I added it myself after posting, but the change isn't being reflected on the forum. Sorry for the error.

    Hello, I have three questions I need assistance with. Some background: I work for a large international clothing retailer as a part-time, hourly employee in Massachusetts.

    1) I had around 20 hours of vacation time accrued, so I took vacation time between the 15th-22nd of August. These vacation hours should have been paid out in the pay check I received on September 4th (I am paid bi-weekly) but the hours were missing from my pay check. I alerted my manager, who submitted a payroll correction, and I was told that these missing hours would now be put into my next pay check, today, 9/18. Upon looking at my pay stub today, these vacation hours are still missing from my check. I called my manager again, who said they would once again fax the payroll correction, and leave a message in the morning to confirm. My fear is that they will now delay paying out these hours another 2 weeks, which is a huge issue for me as I have bills due that I had to put off because my last check was too small to cover them. Now I'm looking at missing a car payment and being late on my credit card payments because they have yet to correct their error. My question is, do I have to wait another two weeks for them to fix this? Or can I insist these hours be paid out to me immediately? Do I have cause to contact the attorney general? This is time owed to me, and they are withholding money, putting me into significant financial strain.

    2) Can an employer force you to clock out, but keep you on the work premises after you've clocked out?

    3) I know in Massachusetts you must get a 30 minute meal break before 6 hours. During Christmas season my store does not schedule 30 minute meal breaks for people who are working six hours exactly. Since the season is very busy, we often end up working later than 6 hours to clean the store. When I alerted them to the illegality of this, they said as long as we stay past 6 hours voluntarily it's legal for them not to schedule a break. Except, they don't notify us when we've reached the six hour mark, so no one is volunteering to give up their meal break and stay, we're staying because we don't realize we've gone past the six hour mark. Unless ignorance of the time is considered volunteering, this seems highly suspect. What recourse do I have if I face this situation in the coming months?

    Thank you!
    Last edited by Mken; 09-18-2015, 06:18 PM.

  • #2
    1.) What you are describing is incredibly poor management, but oddly enough even in MA (which has arguably the most convoluted vacation laws in the US) there is no absolute right to the payout of vacation time AS LONG AS YOU ARE STILL EMPLOYED. The time cannot be lost and ultimately must be paid out to you, but the only time there is any legality surrounding the timing of the payout is when you are leaving their employ. THEN any earned but unused vacation time must be paid out with your last check, or at least at the same time as your last check. But there is no state or Federal law you can invoke that will force them to pay the time out at any particular time.

    2.) Assuming you are non-exempt, probably not, but before I carve anything in stone I'd want more detail.

    3.) MA law requires that you receive a 30 minute break if you work *more than* six hours. Technically, employees who work exactly six hours are not entitled to a break, and technically, they are right that if you stay voluntarily it is legal for them not to schedule you for a break AS LONG AS YOU ARE PAID. I get what you are saying, and it's more evidence of very poor management, but seriously, it's as much your responsibility to keep track of your hours as it is theirs. What's stopping anyone from telling THEM that it's been six hours?
    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.


    • #3
      Thanks for your response. I'm a little shocked that something like this scenario isn't covered under MA law, considering if I had actually been *at* work that week and they didn't pay me, I'd have plenty of recourse.

      In regards to 2, I am a non-exempt employee. If you need more details, let me know.

      For 3, thanks for the clarification. I understand what you're saying, but there are no clocks on the salesfloor, and we're not allowed to have our cell phones on us. The onus really should be on the manager to let us know when we're about to hit 6 hours and then ask us if we don't mind staying, instead of just remaining silent and allowing us to continue working and considering that "volunteering".


      • #4
        1.) But you weren't at work. And NO state, not even MA, requires that you be paid when you don't work.

        2.) What is the reason you are being asked to stay after you clock out? Are you still working?

        3.) Wear a watch. I'm not kidding.

        Seriously, I'm not saying they aren't walking the line, but honestly unless each and every individual starts work at the same exact time, it would be an administrative nightmare trying to keep track of, and notify the employee at, the exact moment they reach six hours.
        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.


        • #5
          1) I'm not sure what your rebuttal is meant to imply. I'm not trying to argue that you must be wrong, I was saying there should be some recourse if an event like this happens. There isn't, so I'll have to deal with it myself as best I can. No, I wasn't physically at work, but I did use the time that I earned that they offered me, and now they're not paying that time out to me, which has put me into a bad financial circumstance. Obviously people are not owed any time if they do not work, but if you take time off of work meant to be covered by vacation time that the company offers, one would assume they would then pay it out to you. I only meant I was surprised MA of all states doesn't account for this.

          2) At the end of the night when we've finished cleaning we're told to clock out since the work is done, but we're not allowed to leave until the manager checks us out (they need to check our bags to make sure we've not stolen anything). However, it's usually upwards of 10-20 minutes of us waiting for the manager to finish the final count of the night before they come and check us out. So I might punch out at 10pm, but I don't actually leave work until 10:15 or 10:20pm. We're not necessarily working, since we're just waiting to be checked out so we can go, but they still make us clock out and then stay on the premises until they're done with their count. This is more of an annoyance than anything else, but I wanted to check the legality of it since it seems to toe the line. I'm not trying to get paid for not working, but I'd also like to leave when I clock out.

          3) I agree that the employee has some responsibility over this, but it really strikes me as a situation where they're interpreting the law to suit them. For the record, we each carry a walkie, so it's easy to say "if you punched in at -this time- you need to punch out before -this time- if you didn't take a meal break." This is something my old job did as they were very on top of making sure meal breaks were taken properly. I suppose we could debate this for a while, but this is not the forum for that. I'll simply do a better job of making sure I leave when I need to, and if they do anything very egregious, I'll involve the proper parties to handle it.

          Thanks for your responses!


          • #6
            1.) it wasn't intended as a rebuttal - just an explanation why the state hasn't bothered to pass a law regarding the timing of vacation pay.

            2.) I'm going to let DAW or hr for me address this. I THINK that time has to be paid but they're better at payroll issues than I am.

            3.) I agree with you that they're playing games, and again I think they're walking the line. So far, they seem to be JUST BARELY staying on the right side of the line. (I hate employers who do this.) It probably couldn't hurt for you to run it by the AG's office but honestly, I can see why management can't really monitor exactly when each employee checked in and contact them exactly six hours later. If you try keeping track of it yourself for a while, and they're still keeping you over without scheduling the breaks, you'll have a much stronger case.
            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.


            • #7
              1. In response to question #2 only, you are not working but you might be "engaged to wait". The problem is that the law (FLSA) and regulations (29CFR531xxx) are not very clear on every and all possible variation here, and court cases go in both directions. At the federal level only, I can say that you have a decent argument, but not a certain argument. That people with similar arguments have both won and lost in cases and administrative hearings. And the courts rational is not all that consistent. The big SCOTUS case here was that chicken parts case in the 1960s where the issue was "duffing and donning" of safety clothes and equipment, which the court said was hours worked. But the decision was narrowly written and taken to mean that a different set of facts (like yours) could be decided differently.
              2. Agreed with CBG on other answers. Most labor law is specific to hours worked. To my knowledge, there is no state which cares much about issue #1. The feds (FLSA law) do not care about vacation even a little bit. States generally do not care much, if at all. And CBG is a lot better at MA specific law then I am.
              "Reality is that which, when you stop believing in it, doesn't go away".
              Philip K. **** (1928-1982)


              • #8
                I worked 5 years as a retail manager so I am very familiar with your scenarios.

                Have you asked to have a manual check cut for your vacation time? It doesn't sound like you have so your manager may think you are ok with waiting.

                My company stayed on the right side of the law by having our time clocks located at the exit so your bags were checked and then you punched out. Is there a handbook which would address this issue?

                The break issue is always sticky. I used to see employee work 6 hours and 20 minutes. If they took a break that would put them under their 6 hours (that they were planning on being paid) so they skipped their break. I suggest if you want the break, make sure you tell your manager at the beginning of the night. Unless you specifically tell them, they can claim you knew how long you worked and didn't mention it to them.


                • #9
                  1. Vacation pay isn't owed at all, and mistakes happen. Hours worked is a totally different ballgame and not a fair comparison. Off cycle checks may or may not be possible. I do not know how they process their payroll. While it sounds harsh, your personal financial obligations are not your employer's responsibility. They have zero control over your living expenses, purchases, and savings. We all have bills so it typically does not go very far to blame the employer for your financial circumstances.

                  2. If that time is yours to do with as you please, make phone calls, play Candy Crush on your phone, grab a snack, etc., odds are it does not have to be paid. If it really is taking 20 minutes at the end of every shift I recommend politely meeting with the manager and asking if the process scan be modified to be more efficient. If others have the same issue, speak to the manager together.

                  3. In no universe is it your employer's job to tell you what time it is. That is always the employee's responsibility. I am going to guess you are very young and relatively new to the workforce. You are probably used to your parents reminding you when TV time is up or bells in school letting you know class is over. As an adult, or at least member of the workforce, that is on you. Gone are the days of the factory whistle blowing at 5 o'clock (alright so my hometown has a company which does this out of tradition but you get the gist). Pick up a cheap watch. There is only one of you. Expecting the manager to track multiple employee's time, their own, breaks, and do their actual job is unrealistic. It is entirely possible your manager does not realize it has been 6 hours since you started either as it isn't their responsibility to track this.
                  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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