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Employer Cannot Take Away Vacation Time Accrued By Employees

WORK & CAREERS | Shop Talk

April 23, 2000

Q: My employees earn accrued vacation time. If they leave the company before taking their earned vacation, any accrued time is paid in their final paycheck.

Our employee manual states that we ask for two weeks' notice if an employee plans to leave the company. In the last six months, I have had three employees leave. One gave no notice (medical reason), one gave five days and the other three days. In all cases, this was quite hard on the company.

I am thinking about changing our policy, stating that the company will refuse to pay accrued vacation time if an employee does not give two weeks' notice. Since we are not required by law to provide paid vacation time, would this be legal?

--B.M., San Clemente

A: No. You are correct that the law does not require an employer to provide paid vacation time. But if an employer chooses to do so, it cannot thereafter take away vacation time that employees have accrued, even as a result of employee misconduct or a violation of policy.

As an incentive to employees to provide adequate notice, you might inform them that employees who fail to provide at least two weeks' notice will not be eligible for rehire and that you will inform future prospective employers calling for a reference of the amount of notice provided by an employee if it was less than two weeks.

Providing such information would not be defamatory in that you would just be stating an objective, verifiable fact.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Pay Rates Vary for Travel on Day Off

Q: What are the overtime laws for an hourly employee who is required to travel for training? If an employee is required to travel on his normal day off, should he be compensated at 1 1/2 times the normal pay rate?

--D.J., Santa Clarita

A: Assuming that you are talking about travel outside your normal area of work, not necessarily.

Under the law, travel time outside the employee's normal work area that occurs during the employee's normal working hours must be counted in determining how many hours that employee has worked in a particular week. An employee is entitled to be compensated for these travel hours, even if they occur on a day off.

An employee whose normal work hours are 9 a.m. to 5 p.m. Monday through Friday, and who leaves for training in another city at noon on Saturday, Sunday or a weekday, for example, would be entitled to compensation of up to five hours for traveling one of those days.

If the travel occurred after the employee had already worked 40 hours in the week, the employee would be compensated at 1 1/2 times his or her regular hourly rate. Travel that occurred within the 40-hour workweek--and during normal working hours--would be compensated at straight time.

But the employee would not be entitled to receive any pay--straight or overtime--for travel outside normal working hours on any day.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

Soliciting Handwriting Sample Probably OK

Q: On an application for a local teaching position, the back page included an unlined box instructing applicants to "state your educational philosophy in your own handwriting."

I suspect the employer is using graphology as a screening tool.

Is this legal? I hate to think an otherwise excellent application might be affected because of the way my penmanship might be interpreted.

--B.M., Upland

A: It is probably proper for an employer to ask a prospective employee for a handwriting sample.

There might be a good reason for such a requirement. You are applying for a teaching position in which the clarity of handwriting could be important. For example, students might have difficulty reading your handwriting on the board or your comments on their papers.

Even if handwriting is not particularly important in your job, an employer still may consider it relevant. It is generally accepted that various aspects of personalities are revealed through one's handwriting, just as we evaluate others by the way they dress and groom themselves and by how they speak.

However, if an employer can determine your ethnic background, sex, religion, age or medical condition through a handwriting analysis and deny you a job for those reasons, it would be illegal.

This would be comparable to psychological questionnaires for employment candidates that delve into illegal areas and can result in discriminatory hiring practices.

Thus, your prospective employer probably is within its rights to request a handwriting sample. But the employer also opens itself up to possible claims of impropriety.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.

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