Dictating Vacation May Preserve Jobs

by Patrick E. Turner
Employee Rights Attorney
Mission Viejo, California

Originally Published in The Orange County Register, September 10, 2001

Q: I work for a company struggling because of a downturn in sales. To avoid potential layoffs, management is requiring us to take all accrued vacation by the end of the year, and all salaried exempt employees must take two weeks off without pay before year’s end. Is this legal?

A: "It seems your company is attempting to avoid laying off employees by implementing very strict cost cutting controls," says employee rights attorney Patrick E. Turner, Don D. Sessions Law Corp., Mission Viejo.

"Both federal and state laws provide that an employer must pay exempt employees their full salary for any week during which the employee performs work. Federal law also specifically provides that an employer need not pay an employee for a week during which no work is provided.

"Under federal law, an employer may furlough exempt employees for an entire week without creating legal liability. You may be entitled to unemployment benefits for periods you are laid off.

"The state of California generally considers vacation pay a form of deferred compensation to be paid by the employer to the employee upon terminator. However, the law takes no position on whether an employer can force an employee to take vacation at a times when the employee might choose not to.

"The courts will likely defer to the employer’ specific policies and procedures regarding vacation pay to determine whether an employer can mandate when you take vacation.

"In light of the more drastic alternative of laying off employees, it would appear this employer is attempting to save jobs. You can enjoy your time off with the knowledge that you have a job to go back to."

For questions, call (800) 774-7494 or access job-law.com. © Sessions & Kimball LLP.