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I have a question regarding a benefit......holiday pay to be…

I have a question...

I have a question regarding a benefit......holiday pay to be exact.

Lawyer's Assistant: Was this discussed with a manager or HR? Or with a lawyer?

No one yet.

Lawyer's Assistant: Is the workplace "at will" or union? Is the job hourly or salaried?

The workplace is at will and the question is not employee specific, it is regarding company wide benefits

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

That is all

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Answered in 1 minute by:
3/15/2018
Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,136
Experience: Employment/Labor Law Litigation
Verified

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance. (The system will automatically generate a phone call request to you. Unless I specifically state, during our discussion, that a phone call is possible, I intend to just use this chat format as I am not in a position to accept a phone call).

What is your question?

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Customer reply replied 1 month ago
When an employer has a benefit in place, holiday pay, are they allowed to make some people wait the 90 day waiting period to receive holiday pay and give it to others before the 90 days, or can they hand out this benefit however and to whomever they choose?
Customer reply replied 1 month ago
I do not wish to pay $59 for a phone call. Thank you.
Customer reply replied 1 month ago
Hello?

Hello. I'm reviewing your question.

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Customer reply replied 1 month ago
Apologies

No apologies necessary.

In response to your question, an employer can pick and choose who to grant a benefit in a more favorable manner than their policy.

Now, we (employment law attorneys) beg our employers not to do this. We beg them not because the act itself is specifically illegal. Instead, we beg them to simply follow the policy, because no one ever complains if you just follow the policy. When you don't follow your own policy, employees rightfully ask the question you are asking now....and another question they ask then is "well, why is the employer treating that person differently?"

Now, sometimes the answer to that question is legally harmless. For example, if the employer treats their employee children better than everyone else, while that is unfair it is not illegal. Nepotism is not actually illegal in the workplace (except for some government jobs), so the employer's explanation on those facts would be legitimate and non-discriminatory.

However, what if the employer picks and chooses, and their behavior seems more favorable to men over women, or whites over non-whites, or Catholics over non-Catholics? Even if that isn't the employer's intent, when someone doesn't get treated as well as another, they look for the differences between themselves and the other....and usually if there is a difference is race, religion, gender, age, disability or medical leave use, that is what the disgruntled employee will notice. That makes sense....those can be really noticeable things.

So, not following their own policies puts the employer at risk of being accused of illegal discrimination based on those factors I mentioned. That's the question you have to ask yourself here. Why do you think the employer treated some more favorably than others? If you can come up with a legitimate reason other than race, religion, gender, age, disability or FMLA use discrimination, then there really is no complaint for you to make here, in a legal sense.

If you cannot come up with a legitimate basis and it looks like a pattern of discrimination is emerging, then you should approach HR or file a complaint with the EEOC in your state.

If you have any further questions or other facts that you would like me to consider, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a three, a four or preferably a five star rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Please DON’T rate my service until after you have asked any follow up questions that you have, so that I have the best opportunity to earn all 5 stars. Also, feel free to request me in the future, if you have questions concerning a different matter.

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Customer reply replied 1 month ago
Really quick...... she has no children. Men are treated completely different than women but that is not what she uses in this case. I was under the impression that favoritism is not illegal, but you cannot play with benefits. When it comes to benefits, you cannot offer a benefit to one employee and not another. So when her handbook says "holiday pay after 90 days", the next employee she hires has to wait the 90 days to get their holiday pay and the second employee she hires gets holiday pay after only being employed 17 days because she likes her better and thinks she's pretty. This is ok in the workplace? Being that it is a "benefit"? So she can offer 1 week vacation after a year to some of her employees and make other employees wait 2 years for a one week vacation?
Customer reply replied 1 month ago
her reason is always..... she doesn't like rules. I have since quit this job. But the unsavory things that I was made a party to are still in my head. I think she should be reported but I don't want bad karma. I only want to report her if she is truly doing something "wrong".

I was using children as an example of a legitimate, non-discriminatory basis for making a decision. Another might be if a person had worked there longer, worked with the other in the past, etc. The number of legitimate, nondiscriminatory reasons can be infinite. It is just any reason other than race, religion, gender, age, disability or FMLA use.

Benefits like holiday pay absolutely can be fiddled with, though many people share your impression of the law. I did too, before I went to law school and practiced in this area.

So unfortunately yes, it is absolutely fine legally for her to allow one person holiday pay sooner than another. Even though it is a benefit, yes. Yes also with vacation. These things do not change my answer or the law.

Unless she is making favorable decisions based on race, religion, gender, age, disability or FMLA use, it is not illegal. You can certainly report her to the management. They may not like it simply because they have the policies there for a reason. However, nothing she is doing is fundamentally illegal.

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Customer reply replied 1 month ago
I have a few more questions..... am I allowed to ask them here or no?

If they are related to the same subject, yes.

If it is an entirely new subject, it is supposed to be directed in a new question thread.

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Customer reply replied 1 month ago
They are still regarding my employer, but there were so many things that happened there, it might be considered a different subject. I will start a new thread. Thank you

No worries. Take care and please rate my service.

Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,136
Experience: Employment/Labor Law Litigation
Verified
Allen M., Esq. and 87 other Employment Law Specialists are ready to help you
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Hello, I wanted to check in and make sure that there was not any additional information that you required after the response I previously provided to you. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care, have a great day and please don’t forget to rate my service.

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Allen M., Esq.
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Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,136
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Experience: Employment/Labor Law Litigation

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