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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 11279
Experience:  Significant experience in all areas of employment law.
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I have two employees that work with full benefits 40 hours

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I have two employees that work with full benefits 40 hours per week, four 10 hour days. The Labor Day Holiday fell on their day off. Do they get paid for the holiday even if it falls on a day they don't usual work? Should holidays be paid at 8 hours but what if that was someones normal 10 hour day? Help, is there a law to follow or any suggestions?
Good morning and thank you for entrusting me to answer your question. I will do everything I can to assist you.

Are these employees paid on a salary or hourly basis? Also, do you have any sort of contract or agreement which would entitle them to holiday pay?

I very much look forward to helping you on this matter.
Customer: replied 3 years ago.

They are paid hourly and they have an employee handbook that states which holidays they get paid for and my verbal agreement but doesn't address this situation.

Patricia,

Thank you so much for your reply. Does the handbook state that they are entitled to be paid for Labor Day? What is your verbal agreement and in what way does the existing written/verbal contract not address Labor Day?

Again, I very much appreciate your clarification. I look forward to answering your question upon receiving this additional information.
Customer: replied 3 years ago.

The handbook states six paid holidays per year which includes labor day but was written for a five day per week, 8 hours per day. These two employees changed their schedule with my approval just 2 months ago. What does the average employee do in this case?

Patricia,

Thanks again. I now believe I understand the predicment, which is essentially that your employees used to work a 5 day week, and while your contract provides that Labor Day will be a paid holiday, that was offered in anticipation that the employees would normally have had to work on that day. Now that your employees have switched to a 4 day workweek, your concern is that you would be made to pay for an entire extra day in addition to the employee's normal wages (rather than paying the same wages for one less day worked) and that this is unfair.

While I do agree that this essentially amounts to a windfall for your employees, I must be candid and tell you that since the terms of your contract still entitle your employees to holiday pay for Labor Day, to deny such pay would constitute a breach of contract, even though the employees no longer work on that day.

The fact is your contract does not provide any qualification to the holiday pay entitlement (at least I am assuming that to be the case). If your contract had provided that employees would be entitled to holiday pay only for those holidays on which the employee would customarily be scheduled to work, that would be a very diffierent story, and up until the actual passing of that holiday, it would have been your prerogative to change your handbook to say this.

However, as the employees can argue that paid holidays provide them an incentive to continue working, they are a form of "compensation" earned on the date of the holiday and as such cannot be forfeited if the holiday policy is not changed prior to that time.

Again, I certainly appreciate where you are coming from, but I am obliged to tell you how the DLSE or a court would decide things under the circumstances, and things would be decided in favor of the employees, I'm afraid. Moving forward, you have full discretion to change your holiday policy to provide for paid holidays only if those days fall on customarily scheduled work days. You also have the discretion to do away with your holiday policy all together. Those are your rights.

However, once the holiday has come and gone, and in the absence of a specific qualification to the holiday pay entitlement, that holiday pay becomes a "wage earned" in compensation for continued employment and as such must be paid.

Theoretically, your employees could file a wage claim with the Department of Labor Standards Enforcement or sue in civil court in order to compel payment under the contract. Accordingly, the best course of action would typically be to pay the holiday pay but then change your handbook as described above.

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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
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