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Employer Has Limits in Changing Vacation Policy

May 14, 2000

Q: My employer has decided to change its vacation policy from "accrual" to what it calls "front load," in which vacation is granted at the beginning of each calendar year.

Upon termination, we would be paid for any vacation time not taken in the current year, but not for vacation time previously accrued.

Can an employer change in midstream and say it is ignoring the old policy? What recourse do employees have, if any?

--C.B., Buena Park

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A: While an employer typically may unilaterally change its vacation policy, in doing so it may not divest employees of vacation already accrued under the old plan. Also, an employer may not require employees to use their vacation in a given year or lose it, which sounds like the arrangement under your employer's new plan.

An employer may lawfully place caps on the amount of vacation that can be accrued, however. For example, a vacation plan can legally provide that unless employees have used all of their vacation from a prior year, they will not accrue any new vacation in the current year.

You should inform your employer that the current policy does not appear to be legal. If you do not feel comfortable complaining in person, you could write a letter to your employer's human resources office or call a hotline for employee complaints if one is provided.

If your employer fails to change the policy, you could file a complaint with the state labor commissioner.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

New Mom on Disability Entitled to Family Leave

Q: I recently had a baby, and am scheduled to return to work in six weeks. However, I had a high-risk pregnancy and was on short-term disability for 15 weeks before the birth.

My Florida-based employer has a short-term disability plan that provided 100% of my income during that period, and until I return to work.

My company sent me a letter stating that the Family Medical Leave Act runs concurrently with the short-term disability that I have been receiving, so I could not use the 12 weeks of unpaid leave usually allowed.

I have a home-based office and have been employed for four years. There are more than 50 employees who work in California for my company.

I heard that the family leave law had changed in California so that disability benefits were no longer concurrent. If so, can I take the family leave and apply it to my situation because I live, work and was hired in California?

--C.H., Granada Hills

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A: As long as your employer has at least 50 employees within a 75-mile radius of where you are employed and you have worked at least 1,250 hours for this employer in the last 12 months and have been with the employer for at least one year, you are entitled to a 12-week family and medical leave to care for the birth of your child under both the federal and state family leave laws.

The federal law is known as the Family and Medical Leave Act of 1993 and the California law is known as the California Family Rights Act.

As a California employee, you also are entitled to a leave of absence for the duration of your pregnancy-related disability, up to four months.

In other words, your employer cannot require you to take these two leaves concurrently.

If you qualify for these leaves under the standards described above but are not permitted to take the time off after calling these regulations to your employer's attention, you may file a claim with the California Department of Fair Employment and Housing.

This state agency is responsible for enforcing all discrimination laws, including those prohibiting discrimination based on pregnancy and the family and medical leave statutes. The telephone number is in the phone book under State of California.

Once you have filed such an administrative claim, you may file a court action against your employer. If you are successful, you can recover compensatory and punitive damages, as well as attorneys' fees.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker

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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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