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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 38507
Experience:  Retired (mostly)
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Submitted: 1 year ago.
Category: California Employment Law
Expert:  Zoey, JD replied 1 year ago.

Hello,

Do you have a legal question you wish answered? If so, please reply and ask it so that we can be of assistance. If not, please contact customer service at***@******.*** to close the question.

Customer: replied 1 year ago.
Sir: I have been "terminated" from my position as a resident Manager. I have been employed at that position for 18 consecutive years. The termination took place while I was on Vacation. It was done without any communication to me, for my return or even inquiry as to what was delaying my return. My record is "spotless. There are zero disciplinary actions, zero negative performance reports.Reason cited for termination. :"....Absenteeism and exceeding Vacation time".Firstly let me say this........my initial contract was with Hawaiian Mgmt Ltd. that contract stipulated contrary to most in the industry. That I as an employee could accrue vacation time. from November 1998 until 2007 I worked within that construct. The nature of the building when I arrived, a condominium complex, is that the AOAO had gone through 13 resident managers in 14 years. These candidates either walked away or became part of the problem........These years between five and seven It was not possible to. take vacation otherwise all strides gained would have been likely undone. Undisputed by any party is there were at a minimum of 360 hours. I believe that to be not accurate I believe there had ought to have been more. But 360 is not in dispute. The BOD president viewed this as a Liability against the association. He attempted to buy it back. He offered me 50% above the face value. I refused to sell. In 2007 he insisted that I sign another contract agreeing that I could no longer accrue vacation time which I did. However, at that time it was clear that this "accrued time was mine." Not to be used but to be banked...........two BOD members at that time remember it precisely that way. Throught out mgmt. Company changes through my efforts I was adamant/diligent that this time be carried through.........Just yesterday I learned that what had actually been occurring is my vacations taken post 2007 my bank of time was being deducted and my earned vacation credits of the corresponding calendar year were being forfeited. This methodology was never discussed, the potential of forfeiture of these earned credits was never announced, there was no notice, nor was there any compensation in the form of payment. This process occurred in absolute silence without notification to me, recording that it had been done..............And this occurred as best I can ascertain for a minimum of four years.Until yesterday at about 9:00 am I was not aware that this had taken place. To make it even more interesting........when I moved to another Mgmt Company, same job about 2010 I ensured that these "accrued credits" would be noted and would convey with me to my new employer. And I was satisfied that that had been accomplished..........No one said to me at that time. Accrued Credits? Why Brant. Those were depleted in 2010.........that is basic overview...............Until yesterday at 9:00 am I have managed to either convince myself or delude myself if I am to rely upon the reading of my friends on the other side, that I had managed to sustain, maintain, and successfully bank those hours and protect them................There are other aspects of this story but none of those aspects fundamentally alter what I have relayed to you..................I would be interested in your thoughts..............NBKelseyLet me add. I get this process. I have no intention of reconstructing reality to suit some personal aim or objective of my own. That would be disservice to you as well as myself. I am about truth telling not congnitive restructuring. This little bundle of time was extremely important to me: I sought to sustain it through all in the event of a moment like this.................It is an irony not lost on me, that the current constituency of the BOD (3 members) would cite "exceeding vacation time" as their reason for termination............and at the same time generically speaking that association had robbed me year after year of the time I had accrued and as well managed to wipe away the vacation time I presumed I was using for my vacation.
Expert:  Zoey, JD replied 1 year ago.

Thank you for the reply.

This is an Employment law matter and that's an area of law in which I do not practice. I'm going to opt out of the question, which will open it again to all experts and have it moved to our Employment Law category, where the experts will have the requisite experience to best address your concern. I wish you good luck with this matter.

Expert:  socrateaser replied 1 year ago.

Hello,

Your question has been sitting idle for a day. I'm not sure if you still need assistance, but I will answer, in the hope that my efforts may be appreciated.

It has long been recognized under Hawai`i law that an employee is not entitled to "pay" for vacation benefits which are unused during the period of employment, unless there is an express policy (or contractual obligation) to the contrary. Lim v. Motor Supply, Ltd., 45 Haw. 111, 122, 364 P.2d 38, 44-45, reh'g denied, 45 Haw. 198, 364 P.2d 38 (1961).

Based upon the above-referenced legal doctrine, unless your employment contract preserved your right to being paid for unused vacation time after termination of employment, then the employer's termination was clearly intended as a strategic means of reducing their liability by effectively forfeiting your unused vacation pay.

To say that this is an incredibly unjust law is an understatement. In California, by contrast, the same strategy by an employer would be considered a theft of wages, and the employee would have a huge lawsuit or complaint to the Labor Commissioner. But, in Hawai`i, the law is written to immunize the employer against this sort of alleged abominable conduct, and short of the legislature rewriting the current labor laws, there is nothing that you can do about your lost vacation pay.

I realize that my answer may not be exactly what you were hoping to read. However, under the circumstances, the best that I can do is to explain what the law is and is not, so that you can avoid expending valuable resources looking for answers that do not exist, and concentrate on the options that are actually available.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

Customer: replied 1 year ago.
that is just a bull-shit response...............complete bull-shit. That case is from 1959 prior to statehood...........I read that case a week ago.............it is not even close to being on point.........and lets get it straight. Once paid vacation is offered then it becomes an earned credit even a wage........State and Local government require policies be posted in the workplace: Policies regarding vacation time. Your answer is flat out Lame....................
Expert:  socrateaser replied 1 year ago.

The Lim case is cited again in: Casumpang v. ILWU Local 142, 108 Hawai`i 411 (2005). And, despite the inherent unfairness to employees, this is the current law of the state of Hawai'i.

Note: I use the WestlawNext(tm) legal research system to research my answers before providing them to customers. WestlawNext is the same costly subscription research system used by every state and federal court of appeals, supreme court, and every major law school in the USA. Among its features is a flagging mechanism that tells me whether or not a case has been overruled by subsequent case law or legislation. Neither Lim nor Casumpang have been overruled -- they are each "good law."

I certainly understand that you are disappointed in being told that the law does not support your circumstances. However, I work very hard to provide accurate, on point, legal answers to customers, and I do not deserve to be publicly defamed/disparaged as a result.

I hope you will reconsider your previous comments. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

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