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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12631
Experience:  Significant experience in all areas of employment law.
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Fulltime/partime status change.

Resolved Question:

Greetings, After returning from a serious family medical emergency, my employer informs me that they are not going to pay my wages during my leave (with my own accumulated sick leave and vacation pay) because I am not eligible for sick and vacation pay since I am apparently not on full time status. I have been employed by the same company for the same number of regularly scheduled hours for over the last two years and have been getting full time benefits until this most recent announcement. My initial agreement with my employer was despite my reguarly scheduled hours falling short by 3.5 hours/week, they would nonetheless regard me as a full time employee if I am open to fill in some open shifts. I have filled many open shifts in the past and indeed in some months, my hours exceed that which is required for full time status even though I haven't been able to cover ALL open shifts. This was an oral agreement only made with a supervisor who is currently not employed by the same company. My questions are: (1) What legal recourse do I have to resolve this issue? (2) I am part of the union and the union agreement expressly forbids change in classification of the employee and reduction of hours/schedule by the employer without due process. Does it matter that my employer did not inform me of this in the past? (3) Does the past classification as a full time employee, which I can show by having received sick and vacation pay, sufficient to argue that I am indeed a full time employee, even though strictly speaking my regualrly scheduled hours do not qualify? Thanks for your response.
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 5 years ago.
Hello and thank you for entrusting me to answer your question.

The answer to your question will ultimately boil down to whether you had a reasonable belief that your were earning the sick days and vacation days that you are now seeking to use. Numerous facts would appear to suggest that such belief was in fact reasonable. Most importantly, if a supervisor promised that you would receive sick days and vacation days provided you fulfill certain work obligations, and you fulfill those obligations in anticipation that you will receive additional benefits, those additional benefits are "earned" and cannot be forfeited. Whether this offer for sick and vacation days was actually made by your former supervisor (you mentioned it was oral agreement and I assume you have no documentation of it), and whether the shifts that you filled in for were sufficient to satisfy your obligations under the offer, will be a question of fact ultimately for a jury to decide.

Additionally, it would appear that you have at least a teneble argument that your union contract entitles you to continue accruing vacation and sick days because your classification was never changed in writing, as the contract requires.

Since it is clear that an employer cannot take these days away from you for no reason, the only remaining question is whether those days were actually earned in the first place. This is a question of contract interpretation that will turn on the specific facts of your situation. Since it would ultimately be within the province of a jury to decide this issue, neither you or I can predict with certainty what would actually happen if this matter were to be tried in court. That said, It would appear as though there are numerous facts in your situation strongly supporting that a contract was in place allowing you to continue to accrue vacation and six days and you were working with the reasonable belief and anticipation that you would accrue such days. Thus, although a precise answer to your question is impossible to give, it would be reasonable to state that you have a plausible legal entitlement to the sick and vacation days that you now seek to use.

I sincerely XXXXX XXXXX you find this information to be helpful. Please bear in mind that the above does not constitute legal advice and no attorney client relationship is formed between us. If my answer has been helpful, please be kind enough to click "accept" so that I get paid for my time. Thanks so much and good luck. 
Customer: replied 5 years ago.
Thank you for your thorough response. Would you kindly cite the relevant statues that would be useful for me to present my case to my employer.
Expert:  Patrick, Esq. replied 5 years ago.
Sure. Labor Code 233 provides the right to use sick time that has accrued. That section can be found here:

The other points I mentioned are based primarily upon general principals of contract law. A complaint for breach of contract must include the following: (1) the existence of a contract, (2) plaintiff's performance or excuse for non-performance, (3) defendant's breach, and (4) damages to plaintiff therefrom. (Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal.App.3d 887, 913 [92 Cal.Rptr. 723].) Additionally, if the defendant's duty to perform under the contract is conditioned on the happening of some event, the plaintiff must prove that the event transpired. (Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 380 [11 Cal.Rptr.2d 524].)

Further, Civil Code section 1549 provides: "A contract is an agreement to do or not to do a certain thing." Courts have defined the term as follows: "A contract is a voluntary and lawful agreement, by competent parties, for good consideration, to do or not to do a specified thing." (Robinson v. Magee (1858) 9 Cal. 81, 83.)

I hope that this clarification makes my answer worthy of your "accept." Please remember that I will not be paid until you "accept" my answer. Thank you kindly and have a very happy new year.
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