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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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Can an employer force you to change paid out sick time to vacation

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Can an employer force you to change paid out sick time to vacation if you have a negative balance?

Hello and thank you for entrusting me to answer your question.

California law is extremely protective of an employee's right to accrued vacation. The law treats accrued vacation as a "wage earned," and absent certain very limited circumstances, forfeitures and deductions of wages are illegal.

Your employer's best argument would be that the excess sick days were paid to you by mistake and that you are not "forfeiting" vacation now, but simply paying back what was never yours to begin with.

However, I don't see this argument as holding water. If your employer's aim was to compel you to return money mistakenly paid, they did not need to wait until the end of the year to do it and they did not need to do it by reducing your vacation--they could have asked you to sign off on a wage deduction at the time they discovered their "error."

All of this is to say that the deduction of vacation you describe is most likely illegal. However, as there is some grey area, it is impossible to predict the result of a wage claim on this basis with certainty.

To file a claim for unlawfully deducted vacation, an individual in your circumstance would submit the matter to the Department of Labor Standards Enforcement here:

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

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

Very best wishes and happy holidays to you.

Customer: replied 3 years ago.

Thanks this is very interesting.


My company waits until the end of the year and if anyone has a negative sick time balance they just automatically reduce the vacation to offset the balance. This is not stated in our Sick time policy.


Thanks for your reply. The policy you describe of "equalizing" sick pay with vacation pay creates a significant legal vulnerability for your employer. If the equalization was to correct a mistaken overpayment, that would be one thing, but a policy that generally prescribes for reductions in vacation is impermissible.

Were you to take this to the DLSE, your employer woudl be legally prohibited from retaliating against you for it, regardless of the outcome.

Please let me know if you have any further concerns and I will do my best to continue assisting you. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.
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