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Vacation Time Concerns: Deferred Time and New Policy

Discussion in 'Employment, Labor, Work Issues' started by Ray H., Jan 11, 2019.

  1. Ray H.

    Ray H. Law Topic Starter New Member

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    Hello:


    I have a couple questions regarding Vacation policy. I had been asked to defer vacation time from 2018 to 2019 due to a major project. In the meantime, the corporate vacation policy has changed from an accrual format in 2018 to “Flex Time” in 2019. Flex Time meaning there is no longer accrued time and really no true standard for Vacation or Sick time.


    Here are my realted questions:


    1. I was asked to defer vacation time due to a major project back in Sept. Since the policy changed, do I have any rights to mandate payment for time lost last year? I feel it is not ethical to ask me to defer time when the old format and new format are not the same.

    2. In my original contract, I negotiated 3-Weeks vacation time. Should I decide to leave the organization and/or get terminated, should this be considered in my final payout?
     
  2. cbg

    cbg Super Moderator

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    In what US state is this? What little law there is regarding vacation is state specific.
     
  3. adjusterjack

    adjusterjack Super Moderator

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    Your questions should be answered by reading the terms and conditions of your contract, assuming you have an actual employment contract and not just an acknowledgment of the hiring based on terms that existed at the time but did not effect your "at will" employment.
     
  4. Ray H.

    Ray H. Law Topic Starter New Member

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    Thank you for reply. I am employed in MA, but the corporate headquarters is in VA (in case this matters)
     
  5. adjusterjack

    adjusterjack Super Moderator

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    Your employer would have to comply with MA laws. However, your starting point is your "contract." Upload a copy if you like, after redacting any identifying information.
     
  6. Ray H.

    Ray H. Law Topic Starter New Member

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    Hi, my contract says that action time cannot be rolled over. However, since I have been asked to defer my vacation time due to a specific project.

    The vacation policy in 2018 is different than 2019. The wrench is that I was offered to defer my time.

    Since there is no difference in the meaning of 3 days or 3 months in terms of vacation/sick in 2019 (but was in 2018), I would prefer to have the deterred time in 2018 in form of cash. Do I have any recourse?
     
  7. adjusterjack

    adjusterjack Super Moderator

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    For cash? I wouldn't think so.

    I can tell you this, though, you start demanding, mandating, or enforcing stuff and you won't have a job much longer.

    Why not just ask your employer how you can handle the "deferred" three weeks vacation from last year?
     
  8. Ray H.

    Ray H. Law Topic Starter New Member

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    I know that demanding or mandating anything is not the way to go, this is why I wanted to ask these kind of questions on a forum like this one before speaking with my boss. =) This way, despite how frustrated I am, I know whether or not asking for cash has legs or not.

    My boss did say I can take an extra week as long as it was done in the first quarter. However, Q1 is not a very timely part of the year in MA. At that time, I did not know “extra week” has no meaning.

    The pessimist in me is that everyone got their time off last year in my group expect for me. Now, with Flex Time, it will not necessarily be equal amongst the group this year either. If I get an extra week, nothing stops my coworker from getting the same, but he got all his time off last year.

    It’s one of those cases where I’ve worked 9-12 hours a day 5-7 days a week since September and just feel like I am losing out on time for working hard instead of getting rewarded.

    At the end, I am trying to understand my rights despite how I feel. To be offered an "extra week" when there is no longer a measure of time anymore just feels like I lost out of my time in 2018.
     
  9. army judge

    army judge Super Moderator

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    More isn't always more, and less isn't always less.

    Exchanging vacation days for cash (where such a swap is allowable) has one inherent disadvantage.

    If you take money in lieu of time off, that payment is taxed, in your case by the state and the federal gubmints.

    If I recall my tax lawyer days, MA has no municipal wage grabs, just the state which steals 5.1% of YOUR money.

    If you opted for days off, you aren't subject to the additional gubmint thefts!
     
  10. Ray H.

    Ray H. Law Topic Starter New Member

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    Thank you all, I can read the writing all the wall that there is not much I can do.

    Last question I have is that in my Offer Letter it does say that I am allotted 3 weeks. With this policy change, does the policy change “overwrite” this agreement should I depart from the organization? (e.g. Am I still eligible to Vacation pay out?) Or by default, my continually my employment, do I by default compile to the changed policy?
     
  11. cbg

    cbg Super Moderator

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    In Massachusetts, vacation, PTO, or whatever you want to call them, must be paid out at termination. You cannot lose time once you have already earned it. (Very limited exceptions apply if and only if certain circumstances apply and are documented.)

    Tell me more about how this flex time policy works.
     
  12. Ray H.

    Ray H. Law Topic Starter New Member

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    There has not been a formal announcement throughout the organization yet. I have one email on this which describes the policy as:

    We will be extending FTO to all Exempt/Salaried Team Members* effective January 1, 2019. This means you and your team will no longer have to track and manage time off accruals or log in vacation or sick days.

    It is the responsibility of each salaried team member to be responsible and to continue to meet all work deadlines and initiatives. It is the responsibility of all people managers to set the standards for requesting time off (i.e. Two week notice),communicate standards in terms of how many people can be off at one time, coverage, etc.
     
  13. adjusterjack

    adjusterjack Super Moderator

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    That's what I was getting at when I asked about your "contract." An "offer letter" is not a contract, it's a confirmation of what was at the moment the letter was written.

    Yes. But (as cbg notes) you still may have to be paid for earned vacation if you leave the company.

    The question is, if it didn't roll over from one year to the next, did you forfeit it by not taking it during the year it was earned? And will the person who told you that you could defer it have selective amnesia if that deferral didn't match company policy?
     
  14. cbg

    cbg Super Moderator

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    In MA, vacation/PTO automatically rolls over into the next year if not taken. The ONLY circumstances under which time once earned can be lost is if ALL of the following are true:

    1.) The employer has a WRITTEN policy in which time not taken by such and such a date is forfeited,
    2.) That policy is available and known to the employee, or at the very least is published in such a way that the employee could reasonably be expected to know it
    3.) The employee has had a reasonable opportunity to take the time

    Even then, this is more or less word for word what the state told me: "If you have a policy in which an employee has until March 31, for example, to take the time they earned in the previous calendar year, we'll look the other way. Unless the employee files a formal complaint - in which case we will rule in favor of the employee".

    So Ray is in a strong position. However, I don't think we know enough quite yet to say how this is going to pan out. So Ray, I suggest you wait till there is a formal announcement and then address your questions to your HR. Then come back and let me know what they say. I've designed vacation and PTO policies here in MA that have to not only pass this state's laws, but also other state's laws as well, and I've spent literally hours on the phone with the state discussing what the state law will and will not allow.
     
  15. Ray H.

    Ray H. Law Topic Starter New Member

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    Many thanks for all the time and thought put into this. Also, our parent company is in VA, is the FTO policy format legal in MA?

    I caught wind of this new coming change in passing from a friendly colleague. I asked our HR Director about the change when she forwarded me the FTO communication intended for Directors to communicate to staff. Once my manager (Director) does communicate this, I look forward to letting you know what is said. From there, I am not sure if this will reflect in the employee handbook and/or what documentation will be available.

    I do have email exchanges with my boss regarding the time off which is likely from before he became aware of this change himself. Initially, the request to defer my time was discussed in a meeting back in Sept/Oct, then I followed asking him how it should work early Dec when he replied, “All I ask is you take it in the first Qtr of 2019.”

    My boss and I do have a great relationship and not at all concerned with communicating with him on the subject matter. I just want to be prepared to know what my rights because he and/or HR may not know how to address this as well. In this case, I know knowing my rights is more important than what I feel is right and definitely will be influential as to how I approach this.
     
  16. cbg

    cbg Super Moderator

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    Yes, the FTO policy is legal in MA. While MA has arguably the most convoluted rules in the US regarding vacation, there are few if any rules about how the employer is allowed to accrue the time.

    This is not really as complicated as you're trying to make it.
     
  17. Ray H.

    Ray H. Law Topic Starter New Member

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    To close the loop:

    My boss has followed up with me since requesting payout for remaining Vacation Time in 2018 because the organization:
    1. Asked me to defer my remaining week of time in 2018 to 2019 due to a major project

    2. The company changed the Vacation policy from 2018 (Accrual) to 2019 (Flexible Time Option)
    My boss reached out to our HR Director, “… it has been confirmed (Pay out) is not an option. You can use that weeks’ vacation during 2019 but will not be able to “cash it out” for a payment if you don’t use it.”

    While not surprised, I am still disappointed.
     

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