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Employer May Be Allowed to Dock Sick Leave as a Penalty for Tardiness

November 19, 2001

Question: My employer has a new policy that if you are late coming back from lunch or arrive late for work, the time will be deducted from your sick or vacation time.

Is this new policy legal? Is this something I should speak to a union representative about or should I accept the policy changes and make it to work on time?

D.K., Los Angeles

Answer: You should talk to your union representative. Most labor contracts provide that vacation and sick leave pay are to be used for vacations and sickness.

If your contract contains similar language, you probably will be successful if you file a grievance with your union protesting the new policy. Even if your contract is silent, your union can insist that your company engage in collective bargaining before implementing the new policy.

If your union contract is silent and bargaining is unsuccessful, you or your union might still be able to challenge the policy, at least the portion regarding the loss of vacation time because of employee tardiness.

California law prohibits employers from requiring employees to forfeit paid vacation that they have earned. Unless your union contract contains a contrary provision, vacation pay is considered a vested benefit that cannot be lost or reduced because of employee misconduct.

Your company's new policy would therefore be illegal since it would charge your vacation account for your tardiness.

There is no similar law protecting sick leave pay. Thus, if you have the rare union contract that does not protect against forfeitures of sick leave pay and if bargaining is unsuccessful, your company will be able to deduct from your sick leave account the time you are absent from work because of tardiness.

Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

Firm Must Reimburse Employee for Expenses

Q: What is the law regarding company reimbursements of expenses? My company has told me it will not reimburse my expenses because they were not submitted in a timely fashion.

H.R., Los Angeles

A: Your employer must reimburse you for your business expenses, even if you fail to meet its deadlines for submitting your expenses. You should not have to bear your employer's cost for conducting its business.

However, you can be disciplined or fired if you fail to meet your employer's deadlines. For example, the employer could decide to delay its reimbursement for as long as three years--the legal limit for reimbursing employees.

If you complain about your employer's failure to reimburse you because your claims were not timely, and you are fired in retaliation, you could have a legal claim for wrongful termination.

Don D. Sessions

Employee rights attorney

Mission Viejo

Holidays Need Not Mean Extra Days Off Work

Q: As a salaried employee for a major retailer, I am entitled to certain holidays off, according to company policy. But in weeks when the store is closed for a holiday, or there's a declared holiday anyway, that day is automatically counted as one of my regular two days off for the week.

In other words, I'm still expected to work five days during these weeks. As a result, I don't receive my paid holidays.

Is this legal?

L.G., Valley Glen

A: Legal, yes. But you should read your employer's policy carefully to determine whether there is a violation.

There is no law that requires an employer to provide paid holidays to employees. It is merely a contractual matter between employer and employee.

If your employer's policy says you will get specified holidays off with pay in addition to two days off per week, the situation you describe probably would violate the policy. But if the policy just says you get the specified holidays off, it would not seem to violate the terms of the policy for a holiday to be one of your days off.

If you believe that your employer is not applying its policy properly, you may want to discuss it with your supervisor.

James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine


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