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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 15762
Experience:  Licensed Texas General Practice Attorney
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I had surgery last year and was out on disability from

Customer Question

I had surgery last year and was out on disability from October thru February my Company did not pay me for the 4 vacation days I had left to use for that year and when I got back to work in March they said because I didn't use them by the end of December that I just lose that paid time??? How can I use my vacation time when I was out of work on temporary disability? Is it legal for them to just take my earned vacation time and not pay me for it or give me my vacation time back?
Submitted: 1 year ago.
Category: Employment Law
Expert:  ScottyMacEsq replied 1 year ago.

Thank you for using JustAnswer.

I'm sorry to hear about your situation. Can you tell me if there was any written policy regarding vacation and if it would be forfeited at the end of the year?

Customer: replied 1 year ago.
There is a written policy in our union handbook that states that you can't carry over vacation time into the new year, but I was out on disability so it wasn't possible to use up my time. It also states in our union handbook that we must save our vacation time for a plant shutdown period that takes place in late December so I wouldn't have been approved for any vacation time prior to going out of work on short term disability anyway
Expert:  ScottyMacEsq replied 1 year ago.

I see. Have there been instances where other employees in a similar situation have taken disability leave and been paid of that vacation time?

Customer: replied 1 year ago.
We typically have 2 shutdown periods a year. One during the first week of July and the other on the last week of December. When people are out on short term disability over the July shutdown where we are mandated to use 4-5 of our personal vacation days if not out of work on short term disability , whenever you get back to work (as long as it's before the years end you are given your vacation time back because it was not used during the "shutdown" time period.
Again I understand that there is a written statement in my Union handbook that the employee is to use your vacation time up by the end of the year, but in the same handbook the company requires the employee to "save" their personal vacation time to be used for company shutdown periods. Basically even if I knew I was going to miss work because of a health issue I wouldn't even been able to use my vacation time that I had last year because they would just tell me I can't use it because I have to save it for "shutdown"??? Just doesn't seem right to me?
Expert:  ScottyMacEsq replied 1 year ago.

I agree that it doesn't seem right. But that doesn't mean that it's legally wrong. You see, New York is an "at will" employment state. At-will employment means that without a contract, you have no contractual or other right to employment with the company. The company is entitled to fire you for any reason: a good reason, a poor reason, or no reason at all--as long as the company does not fire you for an illegal reason (race, gender, age, religion, etc...). But it extends beyond firing, to hiring, promotions, demotions, wage cuts and raises, disciplinary actions, and even scheduling. Unless you can show that this was done in violation of a contract, union agreement, or a clear violation of an unambiguous and binding clause against the employer, or that it was done because of some minority status (age, race, gender, religion, disability) that you have, then they do have this discretion.

New York does not require that vacation be provided at all, and can institute policies for the forfeiture of the vacation. This is (generally) irrespective of your ability to take it or not. Now if they have "looked the other way" and not really enforced the policy for some employees but not others (that would be called "selective enforcement" of the policy) AND you could argue that they enforced it because of your disability or taking disability leave, you might have a case against them for illegal discrimination. But not giving you your vacation while you were on disability, so long as they were not discriminating against you because of your disability or your disability leave (but rather applying a policy in a neutral manner based upon the clear language of the policy itself) then it would be legal. I certainly agree that it's not "right" and that it would be better if they would pay you the disability, but under the clear policies I'm afraid that they have no legal obligation to do so.

I know this is probably not what you wanted to hear, but it is the law. I hope that clears things up anyway. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (good or better). Thank you, ***** ***** luck to you!

Expert:  ScottyMacEsq replied 1 year ago.

Did you have any other questions before you rate this answer?

Expert:  ScottyMacEsq replied 1 year ago.

Are you there? Please note that I am still here, awaiting your response or rating... (please note that rating closes this question out, so if there's nothing else, please rate it so that I can assist other customers that are waiting for answers to their questions)

Expert:  ScottyMacEsq replied 1 year ago.

Should I continue to await your response, or may I assist the other customers that are waiting?

Expert:  ScottyMacEsq replied 1 year ago.

My apologies, but I must assist the other customers that are waiting. If there's nothing else, please rate this answer. Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better) AND press the "submit" button, if applicable.

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If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, ***** ***** luck to you!

Expert:  ScottyMacEsq replied 1 year ago.

I see that you have not responded in some time. Please note that this question is still open until you rate it. I believe that I have answered your question, but if you have any other questions, please let me know.If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, ***** ***** good luck to you!

Expert:  ScottyMacEsq replied 1 year ago.

Did you have any other questions before you rate this answer?