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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6952
Experience:  Significant experience in all areas of employment law.
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I am an executive (exempt) employee and work in California.

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I am an executive (exempt) employee and work in California. On many days over the past 3 years, I have scheduled vacation days, but then worked part or all of the day. What is the law in this area-when an employee works all or part of the day on a previosuly scheduled "Vacation" day, does this count as a day worked or as a vacation day? Do you have to work several hours or all day for a vaction day to be counted as a work day? Please let me know.
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question. My goal is to answer your question completely and thoroughly and to provide excellent service.

I am very sorry to hear that you have wound up working on scheduled vacation days. The answer to your question is relatively straight forward.

Since employers are under no obligation to provide vacation days, the law affords them tremendous freedom in determining how vacation time is to be used. Employers can "cancel" employee's scheduled vacations on short notice and have them work partial days, and employers can even cancel an employee's vacation days all together, with one important catch--all accrued vacation days must be paid to the employee at the employee's daily rate of pay whenever those days are "used."

For example, an employee may have 30 days of accrued vacation. An employer in such circumstance can take all that accrued vacation away from the employee provided the employer pays the employee their daily rate of pay for each of those 30 vacation days (in addition to the employee's normal wages, of course).

I explain all this to illustrate that the relevant inquiry is not how many hours a day an employee works in determining whether they have "used" a vacation day. An employer can force an employee to "use" vacation on any day, including a full work day, the only requirement is that the employer pay the employee for that full day of vacation in ADDITION to whatever work the employee actually performed on that day.

For example, if your daily rate of pay was $100, and you are deducted one day of accrued vacation even though you worked a half day, you would be entitled to your half day of pay plus a full day of pay for the loss of one vacation day. You would be entitled to $150.

So, as you hopefully can see, it's not a matter of how many hours you work on a scheduled vacation day. An employer can force you to work all day on an scheduled vacation day provided he or she pays you for that full day of vacation in addition to the regular wages earned.

I realize that there is certainly an element of unfairness to this, since an employee never truly has the right to "walk away" and take his days off. But this is also a very cut and dry rule that makes it impossible for an employee to be denied vacation pay, since any time a vacation day is used that employee is entitled to a full day of pay in addition to any time actually worked.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY or CONTINUE CONVERSATION button and I will be more than happy to continue assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 6952
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
Thanks so much for this information-now another question....is there a time limit I have in which to ask for pay ont he vacation days I worked? I resigned from my company on January 2, 2012 and they have refused to pay me about $8000 of vacation pay--but I know I worked on vacation days I had scheduled as far back as 2008. Please let me know if I can now claim pay for "vacation" days on which I worked in 2008, 2009, 2010 and 2011. Many thanks--
Expert:  Patrick, Esq. replied 2 years ago.
" Please let me know if I can now claim pay for "vacation" days on which I worked in 2008, 2009, 2010 and 2011."

You absolutely can. However, employers are free to institute policies that limit the accrual of vacation. If your employer had such a policy in place, your vacation accrual would be "capped" at whatever the limit was, and you would not be able to earn more provided you were currently at the limit.

However, assuming that not such cap was in place, there is no limit to how much vacation an employee can accrue. Furthermore, vacations are regarded as WAGES earned--this means that they cannot be forfeited and must be paid ("cashed out") IMMEDIATELY upon an employee's resignation, assuming the employee gave at least 72 hours notice. (Labor Code 201) If an employee gives less than 72 hours notice, the employer has 72 hours from the actual date of notice to pay all final wages, which include accrued vacation.

An employer's failure to pay out all accrued vacation in a timely manner will result in the imposition of a penalty assessment in the amount of the employee's daily rate of pay for each day that the wages go unpaid up to 30 days. (Labor Code 203) So, if an employee is owed vacation, makes $100 a day, quits, and then isn't paid for the accrued vacation for 20 days, that employee would be entitled to an additional penalty assessment for $2,000.

If your employer has not paid you for accrued vacation, an individual in your circumstance would be extremely wise to make a claim with the Department of Labor Standards Enforcement. They will help you get your accrued vacation plus applicable penalties. To file a wage claim with the DLSE, visit this link: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

Again, I sincerely XXXXX XXXXX this information helps you and I wish you the best. Since you are a subscription customer, you will not be charged if you give me a positive rating for this response.

Kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 6952
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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