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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12643
Experience:  Significant experience in all areas of employment law.
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I have nine years worth of scheduling records that show I am

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I have nine years worth of scheduling records that show I am owed 24 weeks and 4 days worth of accrued vacation that was never taken. I am a salaried exempt employee that is being offered a separation package after 30 years with the company. In it they state that they will pay all unused earned vacation (even though they have not said what that is), is there a statue of limitations on how far you can go back for unpaid vacation? The company has never had a cap on vacation until this year, a policy was put in place in February. I have been employed in the state of California the entire time.
Good afternoon and thank you for entrusting me to assist you. My name is XXXXX XXXXX I will do everything I can to answer your question.

There is no statute of limitations with regard to how far back accrued vacation can go. In fact, it is actually illegal in the state of California for employers to institute "use it or lose it" policies which result in the forfeiture of accrued vacation after a certain period of time. "Caps" are legal, provided they are not imposed retroactively (as that would amount to a forfeiture), but you indicate that your employer has never imposed a cap.

Therefore, you would be entitled to all of your accrued-but-unused vacation earned in the course of your 30 year tenure with the company.

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 and kindest regards.
Customer: replied 3 years ago.

Thanks for the quick response Patrick. As a follow up question, what about the years previous to 2005 of which I do not have records but know that I had given up at least a week for the previous 5 years? How do I prove that or is the burden of proof on the employer?


Thank you very much for your reply.

Labor Code 1174 requires employers to maintain payroll records going back three years. If your employer failed to keep such records and your claim pertained only to accrued vacation earned during that period of time, the burden would fall on them to prove that your vacation wasn't earned.

However, if an employer complies with their record keeping obligations and/or the claim for unpaid vacation extends beyond three years, the employee bears the burden of proof as they would in any other civil action.

"Proof" can take a number of different forms and is not strictly limited to physical documents. If you can show that it was your employer's common practice to provide a certain number of vacation days, or if you can point to more recent records, emails, or letters which reference pre-2005 vacation, that would be admissible. Of course your personal testimony is admissible as well, as is the testimony of current and former employees. All these things are relevant and the question as to precisely how much vacation you have accrued is a question of fact for a judge or jury to decide in conisderation of all the evidence.

Please let me know if I can provide any further clarification. It will be my sincere pleasure to do so if necessary.

Patrick, Esq. and other California Employment Law Specialists are ready to help you

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