Labor issue

[mikester]

Alright, So about 7 months ago I left my job of 4 years for another.

I had according to my pay stub about 90 hours of vacation remaining. The check I got on the way out the door was for 70 of it. The remaining 20 I was told was "front loaded" of what I would have gotten had I stayed the entire year.

Nothing like that had ever been explained to me while I was an employee and in talking to my supervisor at the time it was both our understandings that the amount of vacation listed on my stub was what I had and could take at any given time.

So, in my last days I went on a crusade to find out the correct information but I was never even able to find on our company web site or through HR the policy describing how we accrued vacation time. I was given verbal explanations but never was I able to get anything in writing.

So, I made a claim to the labor board. Of course my previous employer has denied that claim and since provided me with all of the documentation I couldn't get from them before the claim.

I do not want what isn't mine.

They say that at the beginning of every year I'm front loaded my vacation for the year and that as I use it - it goes away.

I'm not sure what I should do at this point. Like I said, I don't want what isn't mine and I don't want to make a false claim. We have a hearing date and all I really have that isn't verbal hearsay is my pay stubs. I was never able to come up with any company documentation to support or contradict my position.

Your advice/thoughts are appreciated.

-Mike
(in california by the way)

[RickM]

It's common for companies to advise staff of the amount of vacation they are entitled to accrue during a year. This accrual is usually what you see on a pay stub, not the entire "front loaded" amount. Does the stub show your entire vacation entitlement for the year (Front loaded) and then what was deducted (time you took off) from it?

That aside, if you can't recover the remaining vacation pay easily it will not be worth your time pursuing through the court system...unless small claims will handle that type of complaint and for that amount.

[kumma]

Makes sense to me. They credit you with your vacation time at the beginning of the year. So if you quit/get fired before year end your not entitled to all of that years vacation time. Say as of Jan 1 you get 20 days for the year. You quit on Jan 2 should they pay you for that years 20 vacation days for 1 day worked?

Why shoud they pay you for vacation time not earned. But I'am an evil small business owner so my views are quite a bit different from yours. You might have a case due to lack of verifiable info but is it worth pursuing for 500 bucks or so.

A cousin of mine has always banked vacation time to save for later but I keep telling him to use it up and dont count and a big pay day because you never know what will happen to him or the company.

[mikester]

Like I said, I don't want what I haven't earned.

So, no - if I haven't accrued it I don't want it. BUT another wrinkle is that before 2003 we had a PTO system. Jan 1 '03 we changed to a Vacation/Sick model separating the two types of time off. Before that time our Vacation was accrued and reflected on our pay stub and WAS the amount we had to take that day. I have documentation to that effect from the company but when they changed policies they didn't provide me with documentation showing that change in policy.

On my pay stubs though you can see that my vacation only goes down. It doesn't go up except right before I leave the company (the pay stub before which is in Oct). So, I can't really explain that.

I filed the claim with the labor board because I couldn't get a satisfactory explanation in writing from the company and because the change in policy wasn't communicated very well. A lot of us who had high pto balances weren't paid out the amount we were owed when they changed from PTO to Vacation/Sick. I wasn't one of those people though (I like to actually TAKE my vacation time).

Anyway, I'm just not sure where to go with this claim now - I have to talk to the labor rep next week about it.

My supervisor at the time and our VP both could not answer my question to even their satisfaction at the time and I informed both that because I could not get a satisfactory answer from ANYONE in the company regarding this that I would be filing a claim with the labor commission. They were both fully aware of what I would do but still surprised when they actually got a call from the labor board.

[Superman]

I'm a labor relations guy and, as much as I tend to support workers' rights, I would say there is plenty of potential for this to go either way. I wonder if the local labor board action is concluded, what their process is (arbitration, whatever) and whether the labor board decision is in your favor or not. And at some point I would suggest you consider just moving on. If it's fun and inexpensive to represent yourself and get this in front of an arbitrator, then have at it and enjoy yourself. But if it's aggravating and stressful, let it go.

These cases can be complex. First, I think there is some obligation on the part of the employer to communicate, in writing, the details of your benefits, or at least some of your benefits. An arbitrator might have to decide whether this notice requirement applies to the vacation benefit, and whether it extends to a requirement to outline, in writing, the details of how that vacation benefit is represented on your paystubs. And then he/she would have to rule on whether the company met that requirement. And even if this issue is fuzzy or you lose the issue outright, there is (in my view) a secondary and independent question of whether what they DID publish on your pay stub amounted to a signal that the 20 hours are part of your entitlement, in a way that amounts to an enforceable commitment. That is, if the arbitrator concludes that there was no obligation to provide this detail in writing, but in fact the empployer did provide it anyway, and it says you get the 20 disputed hours, then the arbitrator may reach a decision that essentially says, "The check stub says you have given this worker these 20 hours, now give it to him."

[mikester]

This has been neither fun, nor inexpensive for my time and effort at least. I'm just after what is mine though at this point I'm not sure what that is. If I win I will get what I'm asking for as well as 30 days pay as a penalty to the company. As nice as that sounds, I'm not after sticking it to them but if they have broken the law then I'm not going to argue with it.

The CA Labor board makes things pretty easy on the plaintiff and the defendant I think with regards to filing and defending a claim.

All I had to do was fill out a form and meet with a commissioner.

We attempted to contact them but they were not responsive until their general counsel finally responded.

The hearing is in the beginning of August.

[Superman]

Yes, hearings of this type are quite informal, typically. Objections are nearly always denied (that is, the arbitrator is going to want to hear everything the parties want to say). Also, theoretically the labor department's agenda is to protect workers. Employers make the rules, and have the clout, so they arguably do not fall into the 'underpriveleged' category, although you'd get the impression from their remarks that they think they are unfairly victimized at every step of the way. Sorry to my entrepeneurial friends for that value judgement, but this issue is fairly clear-cut in my mind. Yes, employers deserve a fair shake in all proceedings, and sensitivity to their concerns is entirely appropriate. But as a brute fact, and with all due respect to employers, their protection is not the purpose of the law, or the mandate of the labor commission.

[Schrup]

I save pay stubs, have never thrown them away. It would seem that if you have pay stubs from the beginning of your employment that they would clearly show any "front loading". I've only worked for one company that practiced this & they still gave me all my vacation when I left after 6 years. Got to ask yourself how much hassle you want to endure for $500-$600, unless it's on principle, then it doesn't matter. I tend to be compulsive/obsessive when it comes to labor stuff & it would be hard for me to just let it go. Good luck.

[mikester]

With penalties it's closer to 8 grand than $500-$600.

[Hugh R]

I remember from some where that what's on your pay check is yours. Most companies don't front end load. You start with nothing and then accrue 1 day/month, or whatever it is as you earn it. Did you say 8 grand for 20 hours vacation? Man thats a good hourly rate, or pretty amazing penalties.

[mikester]

I meant to say 5 grand, I fat fingered that.