Human Resource Blog

Vacation Problem

	Attendance Management
Vacation Request / Response Form Weekly Time Sheets Attendance Calendar for 2008, 2009, or 2010 Annual Attendance Tracker Vacation Request Form for 2008, 2009, 2010 (Calendar) Detailed Absence Report

	Benefits
Total Compensation Summary Performance Improvement Plan Performance Appraisal and Review Employee Payroll Status/Change Form Employee Change Form

According to my records, and what was written on my pay stub and my employer’s interoffice website, I should have 65 hours sick time and about 64 hours of vacation time. Which is all within our limits. I have worked here for 18 years. Two weeks ago, I was told that they discovered a printed spreadsheet from January 2005 (only one page, no continuing pages, and no other back up in an old file of the accountant who left in March 2007). They now want to use that as a starting point for my accumulation. Using that page puts me 3 days in the hole for sick and leaves me a only a couple days vacation. I earn 20 days vacation and 10 days sick, in accumulations from my start date. Yet, earlier this week, an email was sent by accounting to all office staff that said they noticed a problem with the timeclock in regards to vacation/sick time, so they are going back to December 2006 for the right amount. I have asked why they went back three years for me, and I was basically threatened with a “if this should go to court, you’d lose because I have this piece of paper”. I said, what about all of my pay stubs. They said that didn’t count. I live/work in Virginia. The office staff is not union, but the higher ups are all union members. Is this legal? Can they just take away all of my accumulated time? Is it legal to use the figures of 12/06 for everyone (as the email from accounting states), yet go to a newly “found” paper from 1/2005 for me?

While the employer’s conduct may seem unfair, it’s not a clear violation of state or federal law.

Virginia does not have any law that requires employers to offer workers paid vacation or sick time.

Employers can set whatever policies they like about vacation and sick time. In this case, it appears that the company has been incorrectly calculating vacation and sick time for years. Usually, an employer can legally correct such mistakes.

It is unusual that the employer seems to be singling out one employee for different treatment. This may give the employee grounds for a discrimination suit. It is illegal to discriminate based on race, color, religion, pregnancy, sex, age (over 40), disability or national origin.

Employers often make statements like, “If we went to court, I would win, based on this piece of paper” simply to discourage workers from hiring a lawyer and filing a suit. That statement might not be accurate.

The Virginia “Payment of Wage” law requires that employers pay all wages due to workers on payday. However, the law doesn’t address the issue of vacation or sick time. Neither does the

Virginia minimum wage law.

A number of states have laws that require an employer to honor any policies or promises made to employees – especially those in writing. Pennsylvania has such a law. Unfortunately,

Virginia does not.

It is possible that in this case, if the employee hired a lawyer, the courts would determine that the years of payroll stubs or written company policy constituted a contract between the employer and employee. In that case, the court would likely require that the employer honor the vacation policy.

Under the federal FLSA, employers must keep accurate payroll records. One way to solve this dispute would be to ask the employer to document the days the worker has used sick or vacation time, since she was hired. Subtracting that number from the total should give an accurate account of the time due.