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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20173
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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I have worked company years, a new CEO came and

Customer Question

I have worked for a company for 3 years, a new CEO came and canceled all PTO (Paid Time Off) and implemented a unlimited Vacation Policy. I am sure this was to eliminate liability on the books as he fired 30% of our work force. Over the past 6 months I have been dealing with a high level of work stress, the company put me into a position that is always being torn between Client issues, Sales Department and Account Management department. Basically as of yesterday I am on a Dr. proscribed FMLA - I was under the impression I am to use all vacation time first and after that FMLA is unpaid, well I lost 3 weeks of PTO during this transition, my employee contract still states I have or am obligated to my PTO but they will not give me any time. Since I have unlimited Paid Vacation time, I feel they are obligated to pay while I am on FMLA for 4 weeks. How can a company have both sides of this, remove all PTO and give unlimited Vacation but when this happens, they say NO! I feel they are obligated to do one or the other, give me my PTO or pay my FMLA vacation time. I am at a loss here. Also, there was no new employee contact to state this PTO change just an email, and give most of my PTO was EARNED the year before, that should be mine and not theirs to just take away with out some compensation. We are a smaller company, 110 people, in business for 6 years. Any advice would be great. This is adding to the stress I am trying to step back from for a few weeks to refocus.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Marsha411JD replied 2 years ago.
Hello,
Thank you for the information. However, in order to assist you I will need a bit more information. First, I need to know what State you work in. Then I need to know whether you are saying that the Company wiped out all earned PTO but just changed to unlimited paid vacation. Why specifically is the Company saying that vacation time cannot be used to offset the loss of income while on unpaid FMLA? Is it because you no longer have sick leave covered by this new policy? Did the old PTO cover sick leave and vacation leave both?
Customer: replied 2 years ago.
I work remote, so my company is based in Chicago and I am based in Boise Idaho. The company did wipe out all my earned PTO, and my employee contract/agreement states that I get PTO. Yes, they are saying that my vacation time cannot be used nor qualifies while on FMLA - however if I were to just take 4 weeks off it would be paid under the unlimited paid vacation time. Sick leave and PTO were combined under my employee agreement, to my knowledge. Under the FLMA handbook I am to use all paid vacation and sick time first and then it goes to unpaid, it doesn't say PTO - it says Vacation time. The words used by my company is you no longer have PTO but unlimited vacation time and you cannot use that on FMLA - that seems a bit sleazy. I also, prior to my FMLA - I was booked and approved for a weeks vacation starting next week, now that should have been paid but now because of FMLA - they are not honoring that. I have worked for the company for over 3 years, seems awful.
Expert:  Marsha411JD replied 2 years ago.
Hello again and thank you for your reply. Ultimately, it is the employers written contracts and policies that apply to whether or not FMLA time off will be paid. In other words, FMLA and paid leave are completely unrelated under the law. FMLA is, by statute, unpaid and starts when the qualifying event occurs, and is intended to protect the job of the person who is on leave. Then, if the employer offers any sort of paid leave, their policies/contracts control whether that paid leave can be used when out sick.
If they pay it for others who are out sick, then they must pay it for anyone on FMLA. However, if they don't offer any sick leave at all and don't allow for the use of vacation leave for sick time, then that is a lawful policy.
Your situation is unique because you have two separate issues overlapping. One is the loss of accrued unused PTO, although arguably the employer will say not only did you not lose it you know have an unlimited amount of leave to take. That issue is one that you will have to decide if you are going to file suit over the loss of this PTO or file a wage complaint with the State.
Normally, the laws of Idaho would apply since that is where you are actually working. So, unless you have a term contract that says the laws of Illinois apply, you would take your actions in Idaho.
As for the current situation, whatever their current written policy or your term contract says applies. If they are not following a contract or current written policy then, again, you can either file suit or file a wage claim with the State.
Please feel free to ask for clarification.
Customer: replied 2 years ago.
When you say the policies of the company apply, what if there is no policies other than a email that states "You have unlimited vacation time and lost all your accused PTO" Nothing else has been discussed or put into a written policy or signed employee contract. Since FMLA states you are to use your paid vacation and/or sick time first and from there it goes to unpaid FMLA. Wouldn't one be able to argue the fact that I DO HAVE paid vacation time to use, under their new policy and since it doesn't have a FMLA clause in it that states to the contrary, I should be protected. I am unaware nor have visibility into if they offer paid time for others under FMLA however I know for a fact they do pay for any sick leave/time that is taken under the new policy, unwritten as it is. wouldn't FMLA of sorts be considered sick leave/time? I understand what you are saying within Idaho law, it just seems the company is trying to have their cake and eat it too with this new policy. I would have been able to use all my old accused PTO and sick leave to cover my 4 weeks, here I am left out to dry. Company wins both ways. Thanks for the response.
Expert:  Marsha411JD replied 2 years ago.
Hello again and thank you for your reply. If there is a written Company policy that says "...you are to use your paid vacation and/or sick time first and from there it goes to unpaid FMLA" then you are right, as I mentioned, the Company would have to pay out whatever type of paid leave they have for employees on FMLA.
As I touched on in my initial answer, yes, the Company has to treat sick leave and FMLA leave employees the same in terms of pay.
Expert:  Marsha411JD replied 2 years ago.
Hello again,
I wanted to touch base with you and make sure that you did not have any further follow up questions for me from the answers I provided to you on the 10th. For some unknown reason, the Experts are not always getting replies or ratings (in the pop up box, which is how we get credit (paid) for our work) that the customer thinks have gone through. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the Site administrator.
In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue, if needed. You can bookmark my page at: http://www.justanswer.com/law/expert-marsha411jd/
Thank you.