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Vacation/sick Pay - Inconsistent Policies

Workers Compensation Law Discussion

Vacation/sick Pay - Inconsistent Policies

Postby Gerrit » Wed Nov 16, 2016 4:53 pm

I work for the Washington County Water District - which are four community members elected to help with our water system.  The town has about 160 people.  I had a paid position with the district for five years - as did another employee.  When he quit, he collected sick and vacation pay.  The problem was he did not qualify to collect it under the employee benefit description.  Nor did the last person who quit.  Now, I no longer work there and they refuse to pay me.  I am the exact same type of employee as the last.  I work part time, irregular hours as needed.  This is exactly the same as the last employee who collected vacation/sick pay.  According to the manual, neither of us qualify for vacation/sick pay.  But the board has set precedent by paying the last employees who didn't qualify and should also pay me.  Isn't that the law?  Policies must be enforced consistently.  Otherwise, they must follow precedent?  They keep telling me to take it to court.  This is over $239.04.  What a waste.  I'll do it and I'll report them to the grand jury if I have to.  It's about doing what's right and they refuse to follow their own rules.  Help!  I saw a sort of similar question asked of you before.  but I want to be able to print out an answer to my question so that I may show it to the board members in hopes of avoiding court.  Thank you in advance.  I'm really desperate.  Please help.

ANSWER: Here is the deal about sick, vacation, or any other fringe benefit pay considered paid time off without work...

In most states, paid time off is at the discretion of the employer. Period. An employer may administer the benefit in any way s/he sees fit, which includes payout upon termination. Most employers have flexible policies which allow them to determine under what circumstances the payout may occur. For example, an employer may state that, in order to receive a payout upon termination, the employee must give and work no less than a 2-week notice, or in order to receive a payout, an employee must not be involuntarily terminated for violations of policy. However, most employers also have written disclaimers in the same policy to account for leverages needed in business. For example, the policy may state that a payout may be approved or denied by decision makers at their discretion. Are these words that really just mean, "Here is my policy and this is what I will follow unless I don't want to"? From the offset and to those who have never dealt with internal employee issues, absolutely, yes, 100% accurate, affirmative Ghost Rider. However, employers must have these disclaimers to deal with those particular instances where the law may dictate payout guidelines or where employers have plausible reasons to deny(or approve) payouts not considered "normal". As an employer, just as the employee desires the right to say, "I did what you asked me to, now pay up", I desire the same right to say, "Yes, you gave a 2-week notice and you worked it, but in the interim you caused a major safety violation, so no, you may not have your payout". We have to look at the policy objectively from both sides.

I agree with your statement that, in most cases, when employers set precedents with other employees(current or former) those precedents hold some water for future occurrences. However, in your specific case, there lies some unknowns. We don't know under what circumstances those other two employees left the organization or the conversations they had with decision-makers which are associated to their particular payouts. We also don't know the circumstances revolving around your departure. I also don't know what state you work in, only a county, so I'm unable(at this time) to research if there are any state labor law guidelines that may be more determinate of what you should, or should not, receive. On the opposite end of the coin, you are also right that $239.04 is not a lot of money in the grand scheme of things. Would I want an extra $239.04? Of course! That's a lot of cash in the bucket, but you must also consider what that $239.04 will buy you in legal relief, which is not a lot, if anything. I'm not really sure what you mean by "I'll report to the grand jury if I have to", but the legal process takes a bit more than reporting your former employer. You will have to deal with court costs, attorney's fees, and any other assorted legal monies attributed to the case. I truly understand about the concept of principle, and I can't say that I disagree with it. However, again, you must weigh how much the concept of principle costs, both in monetary value and in emotional value. With more information, I may be able to help you a bit more.

Shannon M. Reising, MSP, PHR

---------- FOLLOW-UP ----------

Here's a little more info that may help.  I work in California in the Little Town of Washington.  The last two employees who got the benefits were part-time irregular employees(as was I).  That means that you work for an hourly rate for as many hours as needed.  According to the policy, irregular employees don't qualify for benefits - period.  The most recent employee who received benefits quit three or four months before I stopped working for the district.  He was the Treasurer and screwed up the water billing so badly that the District almost went under.  Past due bills added up to almost $30,000 and the late payers were never contacted.  Many people never even got bills.  We only have around 100 rate payers and almost 20% hadn't pain in quite some time.  He also logged a ton of hours that no one can figure out what he was doing - since he wasn't doing the books.  Audits went undone for years.  This, in my opinion, is also partly the fault of the board members as they never asked the right questions.  The other employee who left had to fight the board for unemployment benefits.  They said he quit.  He said he was fired.  In the end he won.  He also got vac/sick benefits.  Actually, he was entitled to three weeks per year and they paid him four weeks per year.  In my case, when the board hired someone new to fix the books, she reassigned most of my duties to a board member who would do them for free.  Two weeks later, my final duty, the town newsletter, was discontinued because the district couldn't afford it - since they found out how badly the district was in financial trouble.  I did my job well and in a timely matter for the entire time I was there.  Now, they won't pay me the same vac/sic benefits as the other employees.  They also say I quit - which is odd since they discontinued the newsletter. So I am fighting about that as well.  The district only has a few employees - so the two that left were the only ones with whom I could compare.  They are the only employees that left before me.  They district then let another employee go(she worked there for a matter of months) and gave her two-weeks pay.  No other employee ever got that and we all worked there for five years.  And nowhere in the policies & procedure or bylaws state that that is even allowed.  I must stress that I was a valued, trusted and accurate employee(regardless of how the district treats you when they let you go).  No board member is disputing that.  They are bringing this up at this week's(Friday's) meeting.  I appreciate any advice you could give.  Thank you.

ANSWER: Thank you for the extra information; It does help.

Let's break each one down a bit and I will give my outside opinions on what I think may have occured. Please bear in mind that these are only opinions based solely on the information provided...nothing more, nothing less.

Treasurer: I am guessing that there may have been some sort of severance agreement in play here, especially if this employee made such a mess of his work that it cost the organization money, and the organization feared the release of this information to customers or the public by this employee after his departure that could further damage the organization. In severance agreements, the employee signs away the ability to sue the company, and in this particular circumstance, signs away the ability to speak to anyone about the company's financial matters. This is rather common; to protect the organization as well as the employee in future possible issues. However, signing a severance agreement comes at a price to the employer. They have to give something in return. This "something" could have been a payout of an estimation of vacation the employee would have earned, or a sum of wages that the employee would have earned over a particular length of time. A standard calculation is one week for every year the employee worked, but could be anything that the board considered fair and in good faith.

The other employee: By your statement, this employee did qualify for vacation pay as he "was entitled to three weeks per year and they paid him four weeks per year". As mentioned in my earlier response, as an employer reserves the right to administer a paid time off policy in whatever way he sees appropriate, this particular circumstance, in my opinion, falls under that policy if the employee was entitled to the benefit. Please also see below for information about what your state also requires in this particular circumstance. The unemployment benefits issue is completely separate and should be kept separate. The ESC makes that determination and both the employer and the employee has the right to appeal any determination that is made by the ESC following their guidelines.

You: You also have the right to file for ESC unemployment insurance benefits and if the ESC denies those benefits, you have the right to appeal and go through a hearing. Keep that separate from the vacation issue. The ESC cannot make an employer pay vacation in the settlement. The settlement is about wages only. With everything that transpired in your tenure, the employer will more than likely have a rough time proving that your termination was not attributable to the employer, which is what the ESC requires for benefits approval.

Here is what the California Division of Labor Standards says about vacation payouts upon termination:

"There is no legal requirement in California that an employer provide its employees with either paid or unpaid vacation time. However, if an employer does have an established policy, practice, or agreement to provide paid vacation, then certain restrictions are placed on the employer as to how it fulfills its obligation to provide vacation pay. Under California law, earned vacation time is considered wages, and vacation time is earned, or vests, as labor is performed. For example, if an employee is entitled to two weeks(10 work days) of vacation per year, after six months of work he or she will have earned five days of vacation. Vacation pay accrues(adds up) as it is earned, and cannot be forfeited, even upon termination of employment, regardless of the reason for the termination.(Suastez v. Plastic Dress Up(1982) 31 C3d 774) An employer can place a reasonable cap on vacation benefits that prevents an employee from earning vacation over a certain amount of hours.(Boothby v. Atlas Mechanical(1992) 6 Cal.App.4th 1595) And, unless otherwise stipulated by a collective bargaining agreement, upon termination of employment all earned and unused vacation must be paid to the employee at his or her final rate of pay. Labor Code Section 227.3 The California Legislature, in order to ensure that vacation plans were fairly and equitably handled, provided that the Labor Commissioner was to "apply the principles of equity and fairness" in resolving vacation claims."   http://www.dir.ca.gov/dlse/FAQ_Vacation.htm

Shannon M. Reising, MSP, PHR

---------- FOLLOW-UP ----------

The Treasurer was not given severance pay.  It was vacation/sick pay only. Nothing was signed and one of the board members voted not to pay him because she didn't think he had a right to it.  They others just voted to pay so he would go away.  The other employee would have been entitled to three weeks vacation but, as an irregular part-time employee, he wasn't entitled to anything.
Gerrit
 
Posts: 37
Joined: Sat Apr 05, 2014 10:18 am

Vacation/sick Pay - Inconsistent Policies

Postby Cadwy » Thu Nov 17, 2016 10:53 am

I feel that I have given all the information I can, without stretching into legal counsel territory, which I cannot do given that I am not a licensed attorney. Given the width and breadth of your circumstances, in my opinion, if you feel that your former employer has not followed California's labor laws when it comes to termination and payout of benefits, I would advise to seek local legal counsel. With the details you have presented, it seems that the employer may have travelled away from standard practice, but if those actions have resulted in violations of labor law, a local employment-related attorney would be able to guide you around all of the nuances associated to filing a claim.

Shannon M. Reising, MSP, PHR
Cadwy
 
Posts: 34
Joined: Sat Apr 05, 2014 6:58 pm

Vacation/sick Pay - Inconsistent Policies

Postby Colwyn » Fri Nov 18, 2016 12:00 am

I work for the Washington County Water District - which are four community members elected to help with our water system.  The town has about 160 people.  I had a paid position with the district for five years - as did another employee.  When he quit, he collected sick and vacation pay.  The problem was he did not qualify to collect it under the employee benefit description.  Nor did the last person who quit.  Now, I no longer work there and they refuse to pay me.  I am the exact same type of employee as the last.  I work part time, irregular hours as needed.  This is exactly the same as the last employee who collected vacation/sick pay.  According to the manual, neither of us qualify for vacation/sick pay.  But the board has set precedent by paying the last employees who didn't qualify and should also pay me.  Isn't that the law?  Policies must be enforced consistently.  Otherwise, they must follow precedent?  They keep telling me to take it to court.  This is over $239.04.  What a waste.  I'll do it and I'll report them to the grand jury if I have to.  It's about doing what's right and they refuse to follow their own rules.  Help!  I saw a sort of similar question asked of you before.  but I want to be able to print out an answer to my question so that I may show it to the board members in hopes of avoiding court.  Thank you in advance.  I'm really desperate.  Please help.

ANSWER: Here is the deal about sick, vacation, or any other fringe benefit pay considered paid time off without work...

In most states, paid time off is at the discretion of the employer. Period. An employer may administer the benefit in any way s/he sees fit, which includes payout upon termination. Most employers have flexible policies which allow them to determine under what circumstances the payout may occur. For example, an employer may state that, in order to receive a payout upon termination, the employee must give and work no less than a 2-week notice, or in order to receive a payout, an employee must not be involuntarily terminated for violations of policy. However, most employers also have written disclaimers in the same policy to account for leverages needed in business. For example, the policy may state that a payout may be approved or denied by decision makers at their discretion. Are these words that really just mean, "Here is my policy and this is what I will follow unless I don't want to"? From the offset and to those who have never dealt with internal employee issues, absolutely, yes, 100% accurate, affirmative Ghost Rider. However, employers must have these disclaimers to deal with those particular instances where the law may dictate payout guidelines or where employers have plausible reasons to deny(or approve) payouts not considered "normal". As an employer, just as the employee desires the right to say, "I did what you asked me to, now pay up", I desire the same right to say, "Yes, you gave a 2-week notice and you worked it, but in the interim you caused a major safety violation, so no, you may not have your payout". We have to look at the policy objectively from both sides.

I agree with your statement that, in most cases, when employers set precedents with other employees(current or former) those precedents hold some water for future occurrences. However, in your specific case, there lies some unknowns. We don't know under what circumstances those other two employees left the organization or the conversations they had with decision-makers which are associated to their particular payouts. We also don't know the circumstances revolving around your departure. I also don't know what state you work in, only a county, so I'm unable(at this time) to research if there are any state labor law guidelines that may be more determinate of what you should, or should not, receive. On the opposite end of the coin, you are also right that $239.04 is not a lot of money in the grand scheme of things. Would I want an extra $239.04? Of course! That's a lot of cash in the bucket, but you must also consider what that $239.04 will buy you in legal relief, which is not a lot, if anything. I'm not really sure what you mean by "I'll report to the grand jury if I have to", but the legal process takes a bit more than reporting your former employer. You will have to deal with court costs, attorney's fees, and any other assorted legal monies attributed to the case. I truly understand about the concept of principle, and I can't say that I disagree with it. However, again, you must weigh how much the concept of principle costs, both in monetary value and in emotional value. With more information, I may be able to help you a bit more.

Shannon M. Reising, MSP, PHR

---------- FOLLOW-UP ----------

Here's a little more info that may help.  I work in California in the Little Town of Washington.  The last two employees who got the benefits were part-time irregular employees(as was I).  That means that you work for an hourly rate for as many hours as needed.  According to the policy, irregular employees don't qualify for benefits - period.  The most recent employee who received benefits quit three or four months before I stopped working for the district.  He was the Treasurer and screwed up the water billing so badly that the District almost went under.  Past due bills added up to almost $30,000 and the late payers were never contacted.  Many people never even got bills.  We only have around 100 rate payers and almost 20% hadn't pain in quite some time.  He also logged a ton of hours that no one can figure out what he was doing - since he wasn't doing the books.  Audits went undone for years.  This, in my opinion, is also partly the fault of the board members as they never asked the right questions.  The other employee who left had to fight the board for unemployment benefits.  They said he quit.  He said he was fired.  In the end he won.  He also got vac/sick benefits.  Actually, he was entitled to three weeks per year and they paid him four weeks per year.  In my case, when the board hired someone new to fix the books, she reassigned most of my duties to a board member who would do them for free.  Two weeks later, my final duty, the town newsletter, was discontinued because the district couldn't afford it - since they found out how badly the district was in financial trouble.  I did my job well and in a timely matter for the entire time I was there.  Now, they won't pay me the same vac/sic benefits as the other employees.  They also say I quit - which is odd since they discontinued the newsletter. So I am fighting about that as well.  The district only has a few employees - so the two that left were the only ones with whom I could compare.  They are the only employees that left before me.  They district then let another employee go(she worked there for a matter of months) and gave her two-weeks pay.  No other employee ever got that and we all worked there for five years.  And nowhere in the policies & procedure or bylaws state that that is even allowed.  I must stress that I was a valued, trusted and accurate employee(regardless of how the district treats you when they let you go).  No board member is disputing that.  They are bringing this up at this week's(Friday's) meeting.  I appreciate any advice you could give.  Thank you.

ANSWER: Thank you for the extra information; It does help.

Let's break each one down a bit and I will give my outside opinions on what I think may have occured. Please bear in mind that these are only opinions based solely on the information provided...nothing more, nothing less.

Treasurer: I am guessing that there may have been some sort of severance agreement in play here, especially if this employee made such a mess of his work that it cost the organization money, and the organization feared the release of this information to customers or the public by this employee after his departure that could further damage the organization. In severance agreements, the employee signs away the ability to sue the company, and in this particular circumstance, signs away the ability to speak to anyone about the company's financial matters. This is rather common; to protect the organization as well as the employee in future possible issues. However, signing a severance agreement comes at a price to the employer. They have to give something in return. This "something" could have been a payout of an estimation of vacation the employee would have earned, or a sum of wages that the employee would have earned over a particular length of time. A standard calculation is one week for every year the employee worked, but could be anything that the board considered fair and in good faith.

The other employee: By your statement, this employee did qualify for vacation pay as he "was entitled to three weeks per year and they paid him four weeks per year". As mentioned in my earlier response, as an employer reserves the right to administer a paid time off policy in whatever way he sees appropriate, this particular circumstance, in my opinion, falls under that policy if the employee was entitled to the benefit. Please also see below for information about what your state also requires in this particular circumstance. The unemployment benefits issue is completely separate and should be kept separate. The ESC makes that determination and both the employer and the employee has the right to appeal any determination that is made by the ESC following their guidelines.

You: You also have the right to file for ESC unemployment insurance benefits and if the ESC denies those benefits, you have the right to appeal and go through a hearing. Keep that separate from the vacation issue. The ESC cannot make an employer pay vacation in the settlement. The settlement is about wages only. With everything that transpired in your tenure, the employer will more than likely have a rough time proving that your termination was not attributable to the employer, which is what the ESC requires for benefits approval.

Here is what the California Division of Labor Standards says about vacation payouts upon termination:

"There is no legal requirement in California that an employer provide its employees with either paid or unpaid vacation time. However, if an employer does have an established policy, practice, or agreement to provide paid vacation, then certain restrictions are placed on the employer as to how it fulfills its obligation to provide vacation pay. Under California law, earned vacation time is considered wages, and vacation time is earned, or vests, as labor is performed. For example, if an employee is entitled to two weeks(10 work days) of vacation per year, after six months of work he or she will have earned five days of vacation. Vacation pay accrues(adds up) as it is earned, and cannot be forfeited, even upon termination of employment, regardless of the reason for the termination.(Suastez v. Plastic Dress Up(1982) 31 C3d 774) An employer can place a reasonable cap on vacation benefits that prevents an employee from earning vacation over a certain amount of hours.(Boothby v. Atlas Mechanical(1992) 6 Cal.App.4th 1595) And, unless otherwise stipulated by a collective bargaining agreement, upon termination of employment all earned and unused vacation must be paid to the employee at his or her final rate of pay. Labor Code Section 227.3 The California Legislature, in order to ensure that vacation plans were fairly and equitably handled, provided that the Labor Commissioner was to "apply the principles of equity and fairness" in resolving vacation claims."   http://www.dir.ca.gov/dlse/FAQ_Vacation.htm

Shannon M. Reising, MSP, PHR

---------- FOLLOW-UP ----------

The Treasurer was not given severance pay.  It was vacation/sick pay only. Nothing was signed and one of the board members voted not to pay him because she didn't think he had a right to it.  They others just voted to pay so he would go away.  The other employee would have been entitled to three weeks vacation but, as an irregular part-time employee, he wasn't entitled to anything.
Colwyn
 
Posts: 48
Joined: Tue Jan 07, 2014 11:31 am


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