Human Resource Blog

This will depend upon your company policy, and what state you are in. A handful of states would require that you pay the employee for his vacation, but not sick leave. He would be entitled to payment only for vacation time earned — meaning time he was entitled to use on his last day of work.

In other states, the employee would be entitled only to payment for benefits as designated under company policy. It is very unusual for an employee to be paid for accrued but unearned vacation, except in California.

Different rules apply in California.

There is no requirement under any state or federal law that an employer treat management and hourly employees the same, or provide the same benefits to both.

So you can provide different levels of vacation or PTO, and permit different amounts of accumulation.

However, any employment action may be de facto discrimination if it results in a protected group having fewer benefits, or worse working conditions, than other employees. Suppose your upper management is almost all white males. Giving them better benefits than others, in the form of more vacation, is illegal discrimination against female employees and minority employees — even if you did not intend to discriminate. By the same token, if most members of management were female, providing better benefits would be sex discrimination against men.

However, as long as upper management has about the same level of diversity as your company as a whole, then this would not be a problem.

You should consult with an attorney before taking this step. It is highly unusual, and we suspect there is far more to this story.

Your understanding is not entirely correct. Neither federal nor California labor law makes a distinction between full time and part time employees. The distinction is a matter of company policy, not of employment law. You could consider all your employees full time or all your employees part time, if you like, without regard to the number of hours that they work. Every California law that applies to full time employees also applies to part time employees.

When an employees part time or full time status is determined by the number of hours that they work, usually that is the average number of hours per week over a period of 3 months or more.

As an employer, there is no law that you must offer benefits such as health insurance, paid vacation or paid sick leave to workers, whether they are full-time or part-time. So we are not clear on why you would want to take this step. It would be simplier to hire full-time employees, have them work 40 hours per week, and offer no benefits. You would save an average of 8 hours of overtime per employee each week by doing so.

If you already have full-time employees who are given benefits, then your proposed arrangement becomes a problem because the new *part-time* workers are putting in an average of 40 hours per week. If the employees in the new group are mostly of a different race, color, religion, sex, age, national ancestry, etc. then you are committing illegal discrimination by providing these employees with fewer benefits.

There is no Pennsylvania or federal law that requires a business to offer comp time to any exempt employee. This is a matter of company policy, not employment law. (In Pennsylvania as in other states, it is illegal to give comp time to a non-exempt employee instead of paying overtime, but this employee is exempt.)

Nationwide, most exempt employees do not receive comp time, even if they work 100 or more hours one week. An exempt employee who works extra hours is given a positive performance evaluation, and may qualify for a bonus. (In other organizations, they wonder why it takes him so long to do the job. But perhaps this employee is performing other peoples jobs, as well.) Some companies would informally reward such an employee with paid time off, or even a week of paid vacation.

 A few generous employers grant comp time when the exempt employee works more than the standard workweek — but the employer has the right to define what the standard workweek is. Suppose that you determine that the standard workweek in your organization is 60 hours. When an exempt employee works 70 hours one week, those companies would grant the exempt employee 10 hours of *comp time* — that is, paid time off to be used at a mutually agreeable future date. Usually, this type of comp time is given at the rate of one hour per extra hour worked, and is not payable if the employee is terminated for any reason.

When comp time is granted, it should be tracked and documented with the employees supervisor signing off on it. The use of comp time should be requested in advance, and approved in writing, so it can be deducted from the total.

Be aware that if you grant comp time to one exempt employee, generally you must grant it to everyone with that job, or even all exempt employees, to avoid illegal discrimination.  

There are few consequences of incorrectly prorating benefits for a part-time employee. There is currently no federal or state law that requires an employer to provide paid sick leave to workers. So this is a matter of company policy rather than employment law.

It sounds like your company policy is that an employee who works at least 20 hours per week (but less than 40 hours per week) receives 5 paid sick days per year. That is a reasonable and even a generous policy — the majority of companies provide no benefits for part-time workers.

If you are genuinely prorating the sick leave, then you would calculate this slightly differently. Your payroll department should be able to tell you how many hours this employee worked, on average, over the past year. Suppose she averaged 22 hours per week. Since you give an employee who worked 40 hours per week 80 hours of paid sick leave (or two weeks) this employee would be entitled to 44 hours of paid sick leave.

(If you calculate only full days of sick leave, then if she averages 24 hours per week she is entitled to 6 paid sick days. If she averages 28 hours, 7 paid sick days, etc. This is because an employee who averages 40 hours per week is entitled to 10 paid sick days, or hours worked per week/4= sick days per year.)

If you protate this employees time differently than the system you use for other part-time workers, that might be illegal discrimination.