Can they deny me holiday pay?

November 18, 2005 7:51 AM

I'm a salaried employee; can my employer deny me holiday pay for a 'probationary' period I was never informed about when I started?

I started a new job the beginning of October. My offer letter states all the benefits I am eligible for, including holiday pay. All other benefits it gives a time line for when they start (example, 30 days for health insurance, 60 days for paid time off), but holiday pay, it says, and I quote. "You will recieve holiday pay for scheduled holidays provided you worked the full regularly scheduled working day prior to the holiday and the full regularly scheduled working day after the scheduled holiday." End there, no suggestion that it starts after a certain period of time. Now, because of when I started, I will lose a week of pay total because there are 5 paid holidays before the supposed probationary period is up.

Is there any legal recourse? I know employers aren't REQUIRED to pay holiday pay, but this says right in the job offer letter they sent me that they will. Unfortunately, its not signed by either party, as it was a document sent via email. But it should have some validity being sent from our HR department, shouldn't it?

(an unrelated note, to add insult to injury, they are requiring me to come in the weekend FOLLOWING the thanksgiving weekend I don't get paid for to do inventory.)

posted by [insert clever name here] to work & money (17 comments total)

To clarify, what did they say when you confronted them with the e-mail?
posted by geoff. at 7:57 AM on November 18, 2005

Where are you? More than likely there are local statutes that deal with precisely this scenario. Are you talking about vacation pay or stat holiday pay? How long is your probation period?
posted by loquax at 8:09 AM on November 18, 2005

This is offtopic, but I strongly suggest you start interviewing again, now.

There's a strong correlation between employers who do this kind of crap to new employees, and employers who suck.

If you find another job quick, your resume won't suffer.
posted by I Love Tacos at 8:16 AM on November 18, 2005

that was assuming that you have a job that requires semi-skilled labor. if you have a total no-brainer position, then you'll probably get sodomized almost everywhere, and the resume builder isn't important anyway.
posted by I Love Tacos at 8:18 AM on November 18, 2005

I know employers aren't REQUIRED to pay holiday pay

They are requried to pay you for statutory holiday. Unless I misunderstand. Are you saying that you will not work the Thursday and Friday of US Thanksgiving and they will not pay you anything?

Unfortunately, its not signed by either party, as it was a document sent via email.

Doesn't matter, it's a valid contract.
posted by loquax at 8:20 AM on November 18, 2005

I am an academic, and so holiday schedules mean little to me, but I don't think there are any statutory holidays in the US in the sense that there are in Canada. Unless some states or localities have them.
posted by ROU_Xenophobe at 8:45 AM on November 18, 2005

To clarify, what did they say when you confronted them with the e-mail?

HR said the general manager has to decide on this issue. General Manager said that it is their policy that employees have a 90 day probation, but he will think about it and let me know monday because of the verbage. Also to clarify, this was a formated word doc send via email. The email refers to it as a "offer letter" the document itself is titled "new hire benefits".

We have two employee handbooks. The general hand book, and the exempt employee handbook. The general one talks about the 90 day probation. The exempt employee one does not cover holiday pay in detail, instead has one line in it that says "Holidays will be paid seperately". It is in the Paid Time Off section, which does not give a time frame in which it starts, either. I was told by HR that the general one is supposed to be for hourly employees (the majority of our staff).

Where are you? More than likely there are local statutes that deal with precisely this scenario. Are you talking about vacation pay or stat holiday pay? How long is your probation period?

Wisconsin. I am talking straight up holiday pay. Vacation pay is classified as Paid Time Off, which is different according to my offer letter, and doesn't start until I've been their 60 days.


This is offtopic, but I strongly suggest you start interviewing again, now.

There's a strong correlation between employers who do this kind of crap to new employees, and employers who suck.
If you said that again, you still would be underemphasizing this point. Unfortunately I spent 3 years slacking and this was the only place that would hire me with a spotty work history. So I'm sort of stuck at the moment. But let me tell you something, there is nothing like the owner asking you if you're going to be dead weight because you objected to infringing on someone elses copyright. (another ask mefi thread about my liability when a week has past).

They are requried to pay you for statutory holiday. Unless I misunderstand. Are you saying that you will not work the Thursday and Friday of US Thanksgiving and they will not pay you anything?

That is correct. They don't want to pay me for thanksgiving, xmas, and new years I am under the impression that they don't have to pay you based on this DOL.gov . Except the agreement part. I would assume this falls under that.
posted by [insert clever name here] at 8:47 AM on November 18, 2005

I found the answer to my problem. At least in wisconsin;

from WI DWD
"If work is not made available to employees paid on a salary basis for part of a workweek, the employer may not reduce the week’s salary. If work is not made available for an entire workweek, however, no salary needs to be paid."

I suppose they could tell me to go home for the week, which might just suck more, but hopefully it won't come to that.
posted by [insert clever name here] at 10:03 AM on November 18, 2005

Well, I don't know anything about employment standards laws in the States, but in terms of your contract, a court would likely rule in such a way that the writer of the contract (your company) was affected negatively rather than you where the contract terms are ambiguous, as they appear to be in your case. Whether or not it's worth going to court over is a different story entirely of course.
posted by loquax at 10:07 AM on November 18, 2005

Whether or not it's worth going to court over is a different story entirely of course.

That's the crux of the issue, isn't it? Fortunately finding this in the wisconsin state laws means that I don't have to get a lawyer involved, I just need to report it to the state (assuming my pointing out the law doesn't get the manager to change his mind.)

But whether a weeks worth of pay is worth fighting over, I don't know.

Does anyone know if I report this to the state if that gives me some sort of whistleblower protection, or could they fire me for being a troublemaker?
posted by [insert clever name here] at 10:12 AM on November 18, 2005

A lot of employers do this and it is a terrifically crappy thing to do. But it's legal. Did you read the fine print on everything you signed? Including the employee manual? A lot of employers will not let you take any holidays or vacation time until you've worked for X months. This usually translates into new employees being forced to take holidays and/or vacation unpaid.
posted by nixerman at 10:31 AM on November 18, 2005

Does anyone know if I report this to the state if that gives me some sort of whistleblower protection, or could they fire me for being a troublemaker?

Even if you have whistleblower-type protection (in Canada you do, I have do idea about the states), are you willing to go to court to fight your theoretically wrongful termination? Assuming there even is such a thing for probationary employees? A lot of these types of disputes come down to how far you're willing to go and how much you're bluffing. The dollar amounts are so low (I assume), that it's not really worth paying a lawyer, or the state's time, or the company's time. At the same time, this dispute is far more important to you than it is to them on a relative scale, and it gives them way more power by default. Having been in similar situations, the question I've always asked myself is "am I willing to bring forward a lawsuit if we can't hash this out?" (of course, after having consulted an employment lawyer). If the answer is yes, then I set up a meeting and talk to them about it. If the answer is no, then better to swallow your pride, suck it up and pretend like it never happened, or go get another job.
posted by loquax at 10:37 AM on November 18, 2005

[insert clever name here] writes "Fortunately finding this in the wisconsin state laws means that I don't have to get a lawyer involved, I just need to report it to the state (assuming my pointing out the law doesn't get the manager to change his mind.)"

Yeah but you should be prepared for the possibility that pointing this out and insisting on compliance will get you canned. It certainly sounds like that's the kind of crap person you're dealing with here and they are likely completely within their rights in an employment-at-will state to can you over this, just so long as they pay you for that day. Are you eligible for unemployment yet?
posted by phearlez at 10:55 AM on November 18, 2005

nixerman, that may be true on a federal level, but the link I found does say that legally in Wisconsin, I have to be paid for a full week. No fine print, the only thing I signed was an agreement to take a drug test if asked, and something saying I was who I said I was. Beyond that, I am pretty sure you can't legally sign away any rights. Say an employer says they'll hire you, but only if you agree to sign away any rights to minimum wage. You're desperate for a job, and you do. THe company is still doing something illegal. I think.

loquax, I hope it doesn't come to that, but I really really hate employers that trample over the legal system because they know their employees don't know the law OR are too afraid to do anything about it. I also just found out talking to some employees that its not uncommon for them to deduct pay from an exempt salaried employees paycheck if that week they didn't work a full 40. Regardless if the previous week they worked 60. Now, I know for a fact this is illegal. So I may just be able to make a case that if they don't pay me they open themselves for investigation on more than one issue. (and as I understand it, not only are the fines not pleasent, but they might lose exempt status on all their employees and be liable for back pay of overtime for up to 3 years.) Or they could just say fuck it and fire me now.
posted by [insert clever name here] at 11:00 AM on November 18, 2005

you should be prepared for the possibility that pointing this out and insisting on compliance will get you canned

If you're going to bring this up, try something like "I was researching the question, and found this [give them copy]. Would you take a look at this and tell me what you think?" [A least give them a chance to change their mind, and save face.]

As opposed to: "This says you DO owe me money for holidays, and I DO expect to be paid."

Also, in general, a probationary employee has much less protection than a non-probationary one, and that even a non-probationary employee is, in general, able to be dismissed by an employer at will (exceptions: a contract; a union; specifications for dismissal in an employee handbook, which courts - I believe - consider to be a contract). In other words, if you're going to make a fuss of this, you might want to wait until after your first 90 days of work. (By "fuss", I mean even uttering the word "lawyer" or "lawsuit", or being less than polite and humble, although firmness is okay.)


to add insult to injury, they are requiring me to come in the weekend FOLLOWING the thanksgiving weekend I don't get paid for to do inventory

I'm not following this - why is it an insult? You're being paid for these extra hours, yes? [Overtime rules are complicated, so I won't say that you should be paid overtime rather than straight time, but it appears from this that you should be.]
posted by WestCoaster at 1:18 PM on November 18, 2005

I'm not following this - why is it an insult? You're being paid for these extra hours, yes?

Nope, not being paid for those hours because I am exempt. That's the point, my salary should not change from week to week regardless of hours worked; except in special circumstances.

I should also reiterate; nothing anywhere indicated I was a probationary employee or would be subject to a probation period; until this issue came up. Hourly employees have a probation period, our handbook does not indicate exempt employees do, so a probation period is not an official company policy for exempt employees. My offer letter did not state I was entering employment under a probationary period, nor was it mentioned to me until this very day today when I saw a sign on the wall and asked if it applied to me.

The closest thing to it was in my job offer, it says that after 90 days, I will be subject to a review, and that review may lead to a wage increase. While I suppose this could be construed as a probationary period, I don't think that would be legally binding.
posted by [insert clever name here] at 4:15 PM on November 18, 2005

This is bizarre. You don't say exactly what your regular job is, but it's not at all clear that it qualifies to be classified as exempt. Moreover, if you are classified as exempt, that almost by definition means that you are paid for holidays (basically, exempt means that you get a flat, annual salary). (I also believe that it's illegal to require exempt employees to keep records of hours worked for any purpose other than billing, or to require you to clock in, or to dock your pay for being late, or a variety of other things that your employer may be doing.) [FLSA rules and information are here.]

If where you work is part of a larger organization, I'm tempted to advise you to talk (as anonymously as possible) to the Wisconsin Labor Standards Bureau, or to a employment lawyer about a class-action lawsuit. If your organization is relatively small, and not particularly profitable, on the other hand, then it's quite possible that the alternative to doing all the illegal things they're doing is to go out of business.
posted by WestCoaster at 11:33 AM on November 20, 2005