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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34137
Experience:  Retired (mostly)
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My company has an official policy of a vacation hours cap of

Resolved Question:

My company has an official policy of a vacation hours cap of 200 hours. They have not show evidence of enforcing this, and my pay stub shows about 400 hours of unused vacation time. If I leave the company do they have to pay me for the 400 hours since it shows on my stub?
Submitted: 3 years ago.
Category: California Employment Law
Expert:  socrateaser replied 3 years ago.
The employer must compensate the terminating employee for unused vested vacation time: "(A)n employment contract or employer shall not provide for forfeiture of vested vacation time upon termination." Labor Code § 227.3; see Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 779 (employer's requirement of employment on an anniversary date cannot prevent right to vacation pay from vesting).

Although employers may not require an employee to forfeit vested vacation pay, the employment agreement may place a legitimate "cap" on accrual of vacation pay after which no further vacation will accrue. See Boothby v. Atlas Mechanical, Inc. (1992) 6 Cal.App.4th 1595, 1602-1603.

So, if you leave, the employer must pay the entire 400 hours of vacation.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

Customer: replied 3 years ago.
None of your examples seem to apply to the situation I described, and are things I've already found online. The core of this question is whether the official cap stated by my employer can be retroactively enforced when they have already shown a larger balance on my stub. In other words, does showing a balance on my stub that is itself clearly in excess of the stated cap make the cap non-enforcable - at least for me?
Expert:  socrateaser replied 3 years ago.
My interpretation of the cited laws is that the legal authorities flatly provide that an employer cannot involuntarily forfeit an employee's already earned vacation time, but that the employer can establish a vacation hour cap, after which no further hours may be accrued.

In your case, if you have already accrued the hours before the date at which the vacation cap policy was established, then you are entitled to those additional hours above the cap, because the alternative would be a forfeiture of the hours already earned.

The difficulty may be proving the date at which the cap was established, and obtaining the hours without first quiting your job. This could be avoided by requesting payment for the hours above the cap, and if refused, filing a wage claim with the Division of Labor Standards Enforcement. By filing the claim, you are protected from retaliation, and you will get a ruling from the government that the employer would have to litigate to try to overcome. And, since the law is squarely against the employer's likely position, it will lose, you will get your hours paid, and then if you wish, you can quit.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

Customer: replied 3 years ago.
The cap is not a new policy. It just never appears to have been enforced. In fact I once had a verbal conversation with the CFO about my excess vacation hours, and he said it was not a problem - but I don't have that in writing.

My assumption has been that the fact that they show these hours over the cap on my pay stub is sufficient evidence that the policy is not actually the policy in practice, and therefore cannot be enforced retroactively.
Expert:  socrateaser replied 3 years ago.
Well, you can certainly take the position that the stated policy is in conflict with the employer's actual practice, as evidenced by your paystub, therefore the contract is impliedly modified to reflect actual practice, because it is well established that an employee who works in reliance upon an employer's implied promises, obtains the benefits of the implied promise under the legal doctrine of "waiver and estoppel."

Whether or not anyone at DLSE will jump in and say, "Yeah, that's right, we're gonna go get your hours for you," is unknown. DLSE is not fond of complicated legal theories -- so, you might have to hire a lawyer and sue -- or, waive your right to any recovery in excess of the small claims maximum of $7,500, and sue in small claims court.

The employer is lawfully required to maintain accurate records, so if your paystub shows 400 hours of vacation, then that, in my opinion, is pretty strong evidence favoring your argument.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


socrateaser, Lawyer
Satisfied Customers: 34137
Experience: Retired (mostly)
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