Dear mybenefits,
I hate to be the bearer of bad news, but your employer does not appear
to have committed a violation of the Massachusetts labor code. Before
I explain why not, let me extend to you my sympathies. I understand why
you are disgruntled. It is unpleasant to feel that one has been deprived
of the full fruit of one's labors on the basis of a seemingly arbitrary
contract stipulation.
The labor code treats employee benefits very seriously, including the
matter of vacation time. Tom Reilly, the Massachusetts Attorney General
since 1999, has made a point of pursuing legal action against employers
who do not respect the law. During his tenure, the Attorney General's
office has issued stringent legal opinions in favor of employees who
are not accorded their due portion of vacation time. Furthermore, it is
usually the case that PTO hours are counted in some part as vacation time,
so a certain proportion of your PTO hours would ordinarily be covered
under provisions for the due disbursement of vacation time. However,
in the particular circumstances you describe, the company appears to be
within its rights to withhold the PTO hours from you.
To understand why this is so, we must first consider the exact definition
of vacation time and how it relates to PTO. Vacation time is not an
entitlement under Massachusetts labor law but a granted benefit. In short,
an employer is not required to give vacation time to its employees. If,
however, the employer does choose to allow vacations, the hours of
vacation time accumulated under the terms of an employee's contract
are subject to the same legal strictures as ordinary wages. This means
in particular that an employer is obliged to issue all vacation hours
accruing to the employee, or in the event of termination or departure
of the employee to make payment equivalent to the unused vacation time.
Q: Are companies required to give vacations?
A: No, vacations do not have to be provided, but if an employer
agrees to provide a vacation, the company must abide by the
criteria set forth by its policy.
Massachusetts Attorney General: Vacation
http://www.ago.state.ma.us/sp.cfm?pageid=1114
Vacation Payments Are Wages
Employers who choose to provide paid vacation to their employees
must treat those payments like any other wages under G. L. c. 149,
S 148.
Massachusetts Attorney General: Advisory 99/1: Vacation Policies: Page 1
http://www.ago.state.ma.us/filelibrary/VACADV.PDF
Vacation time is not the only kind of leave that employees may offer as
an earned or granted benefit. Other kinds of leave include sick time,
maternal leave, and so forth. As an efficiency measure, many employers
nowadays combine all the kinds of leave into a single bank of time called
Paid Time Off, or PTO. Because not all kinds of leave are covered by
the same legal contingencies, and in particular because not all leave
is equivalent to wages in the same way as vacation time, the employer is
required to make a clear statement of what proportion of the PTO bank is
considered vacation time. For example, an employer may stipulate that 40%
of PTO hours are to be considered as vacation time. In the event that
no such breakdown of the PTO was provided to an employee at the time of
hire, that employee may have cause to argue in court that some reasonable
proportion of his accumulated PTO time is to be treated as vacation time.
Some employers combine sick leave, personal leave, vacation leave,
and/or other types of leave into one general category called
"annual leave". This combined leave is also called paid time off,
earned time, or paid days off. Employers who provide annual
leave instead of vacation leave should designate the amount
of hours or days of the leave which are considered vacation
time. Employers who have previously designated vacation time in
this manner, whether orally or in writing, shall produce proof
of such designation to rebut a complaint of unpaid wages pursuant
to G.L. c. 149, S 148.
Massachusetts Attorney General: Advisory 99/1: Vacation Policies: Page 4
http://www.ago.state.ma.us/filelibrary/VACADV.PDF
All well and clear so far. Vacation time is equivalent to wages, and the
employer is required to show you what portion of PTO consists of vacation
time. The trouble, however, is that the Attorney General concedes that
employers have the right to formulate rules and exceptions concerning
the disbursement of vacation time. There is a particular mention in the
Attorney General's Advisory that an employer may require its workers to
spend a minimum period in its employ before earning a vacation. Thus,
the Attorney General is not likely to prosecute an employer who withholds
vacation time on the basis of such stipulations in its labor contract.
Employers can protect themselves by adopting clear and unambiguous
vacation policies. For example, an employer may provide
that employees begin to earn vacation time after a specific
probationary period, such as after six months of employment.
Massachusetts Attorney General: Advisory 99/1: Vacation Policies: Page 3
http://www.ago.state.ma.us/filelibrary/VACADV.PDF
Based on the details you have presented, I would say that your employer's
policies are fairly clear and unambiguous. If the contract is worded
in the way you described, then it implies that you are not entitled
to use any PTO hours at all until you have spent six months in their
employ. Thus, in reference to the first part of your question, it would
seem that you forfeit all of your accrued PTO hours. As for the second
part of your question, the wording of your contract implies that you
are not entitled to use any PTO hours before you have been employed for
a period of six months.
The fact that you have, as you say, used up eight hours of PTO time is
the only indication I can find that the employer's policies are not
consistently applied. But here it appears that the firm has violated
its own policy in allowing you to use some hours of your PTO time before
the end of the six-month period, and not in depriving you of all other
PTO hours before the end of that period. It is not for me but for
your personal lawyer to decide whether this is sufficient ground for
litigation. In my opinion, the time and expense of litigation would far
outweigh the potential gains.
If you are convinced that it is worthwhile to pursue this matter further,
your first step should be to review the contract for any mention of
the PTO breakdown. The hours of vacation time for which you can expect
compensation under the Massachusetts labor law are limited to the amount
stipulated by your contract. Furthermore, you may wish to peruse the
Attorney General's Advisory from which I have quoted above, as well as
Chapter 149 of the Massachusetts General Law, which the Attorney General
interprets in his Advisory.
Massachusetts Attorney General: Advisory 99/1: Vacation Policies [PDF file]
http://www.ago.state.ma.us/filelibrary/VACADV.PDF
Government of Massachusetts: General Laws of Massachusetts: Chapter 149
http://www.mass.gov/legis/laws/mgl/gl-149-toc.htm
Finally, before speaking to a lawyer, you may wish to call the state
government's Fair Labor Hotline at (617) 727-3465 to further ascertain
whether your rights have been violated.
In general, however, you may expect widespread agreement with the
principles enunciated by the Attorney General based on his reading of
the General Laws. Although vacation time is equivalent to wages, and
some portion of PTO may be equivalent to vacation time, the employer
is free to make rules concerning the accumulation and disbursement of
PTO hours. The employer is obliged to compensate you only if he would
otherwise be violating his own PTO policy, which does not appear to be
the case.
I hope you are satisfied with the efforts I have made to address your
question, even if the legal implications are not to your liking. If you
feel that any part of my answer is incorrect or unclear, please let me
know through a Clarification Request so that I may fully meet your needs.
Regards,
leapinglizard |
Clarification of Answer by
leapinglizard-ga
on
05 Jan 2005 05:49 PST
Ah, now their demand that you reimburse the PTO you've taken is a
striking development. If part of the PTO consists of vacation time,
what they are doing is equivalent to retracting wages they've already
paid. Such an action would be clearly illegal.
Even if the PTO does not consist in any part of vacation time, this
initiative of theirs is highly dubious. If they did permit you to use
PTO despite the general outline of the contract's terms regarding PTO,
and if the contract did not contain special provision for this
eventuality -- namely, that you take advantage of PTO hours before the
end of the six months' probationary period -- then one of two things
is true. Either they are acting in violation of their own contract, or
the terms of the contract were not clear and unambiguous. In either
case, you do appear to have just cause.
If I were in your place, I would take steps to compel them to withdraw
their demand of reimbursement. Whether you'll have the patience to
prevail in the long run is a different question, especially if you
lack union support. In many such cases, unfortunately, the employer is
able to deprive the employee of due wages simply by letting the
quarrel drag on and wearing out the employee. Some years ago, I was
stiffed by two different employers on two different occasions, in
circumstances similar to yours, namely voluntary departure after a
brief period of employment. The first time it was $80 I was owed; the
second time, $200. After several weeks' hounding each employer, I had
to call it quits and move on. Such are the hazards of the service
industry.
leapinglizard
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