Forced to work specific days or vacation pay withheld, kosher or no?
May 23, 2018 3:32 AM   Subscribe

Is it legal for an employer to withhold vacation pay if you don't work on specific days that you normally would not work, ie Sundays?

The company I work for is closed for two major religious holidays during the year, one in late March/early April, and the other in late September/early October. These are paid holidays for pretty much any employee that has been working at the company continuously for more than 6 months at the time of the holiday. However, leading up to and immediately after the holidays there are several "mandatory Sundays" that all employees must report to work for. Failure to report to work on these days, or even if you're excessively late, will result in your vacation pay for that holiday being withheld. Is this legal? I've always assumed it fell under "shitty but not illegal" since I'm sure they have a team of lawyers telling them what they can and can't get away with but it also struck me as something that might not be totally okay. If it matters, it's not that I have any religious objection to working on Sunday, and I'm sure it'd be hard to claim I suddenly did after 6+ years.

This is in both NJ and NY state.
posted by anonymous to Work & Money (13 answers total) 2 users marked this as a favorite
 
IANAL. One thing you’ve left out is whether you and other employees are hourly or salaried. If you’re having to work several extra (Sun)days to be able to take the holiday off, it seems the net effect of each “holiday” is that you’re actually putting in more hours than you normally would. If you’re hourly then at least you’re getting paid for those extra hours. If you’re salaried then this ‘paid holiday’ sounds like a cruel joke.
posted by jon1270 at 4:25 AM on May 23, 2018 [3 favorites]


I suspect the only way the law might be involved in this case is if the mandatory Sundays push you over 40 hours for the week, you may be entitled to overtime pay for that week.
posted by Rock Steady at 4:48 AM on May 23, 2018 [1 favorite]


While employers can require overtime, I don't think they can condition vacation pay on showing up then - I think those are two separate issues. What if you're sick one of those days? You shouldn't lose vacation pay over that.
posted by bile and syntax at 5:31 AM on May 23, 2018 [3 favorites]


This sounds like a question you should be asking the state labor boards, or whatever the agency in each state might be called. I don't think that we have enough information here to make that determination.
posted by Hanuman1960 at 5:47 AM on May 23, 2018 [3 favorites]


I've always assumed it fell under "shitty but not illegal" since I'm sure they have a team of lawyers telling them what they can and can't get away with

I’ve been doing a lot of labor organizing lately and let me assure you this is frequently not the case. Even places with in-house counsel frequently fail to run a ton of totally illegal stuff past the lawyers, or the lawyer has been casually practicing only for the company for years and has not kept up on the state of the law in their field, etc.
posted by corb at 7:10 AM on May 23, 2018 [9 favorites]


From what I have heard over and over: pay, including vacation pay, is sacrosanct. If you've earned the money, it's yours and the employer may not withhold it under any circumstances. Even if you are super mega terrible in a hundred documented ways, they still cannot withhold pay. They can fire you but they will have to pay you for time worked and vacation accrued and every state has strict laws about it. But since you mention that they are heavily lawyered up, I am wondering if "we will withhold your vacation pay" is your words, not theirs. Are they by chance actually saying that if you don't work those mandated Sundays they will record it as vacation time taken? That would make sense, and is (probably) perfectly legal.
posted by rada at 7:14 AM on May 23, 2018 [4 favorites]


I think the best idea is to check locally. Under my understand of Ontario labour laws, this would be legal if the religious holiday days did NOT count against your accrual of regular vacation time.

So for example, I have 10 vacation days. After I work the Sundays + don't work the religious holidays (i.e. the days the business is closed), I still have 10 vacation days. The Sundays have been exchanged for the days the business is closed. If I don't work the Sundays then I am chosing to use my vacations days instead, so that's where I would 'lose' (i.e. use) my vacation days.

What I'm not sure would be legal (it would depend on your employment status because some things don't apply to various levels of staff) would be that you have to work the Sundays and ALSO the religious days off count against your regular vacation days.

One is shifting the hours of work from some days to other days, the other is essentially taking vacation days but also expecting you to work an equivalent number of days.

I will say that for most of my career, particularly once I got to a managerial level, whenever I've taken vacation days I've functionally had to work other days because the work still had to get done, but that's a bit different than being scheduled for it.
posted by warriorqueen at 7:44 AM on May 23, 2018


I've always assumed it fell under "shitty but not illegal" since I'm sure they have a team of lawyers telling them what they can and can't get away with

I'm a consulting attorney in an adjacent field, and I'd echo corb - while the general counsel of an employer will often know a good deal about labor and employment law, depending on the size of the company, whether it uses an outside labor and employment law firm, the states it operates in, whether there's been a recent merge, etc., I never assume that an employer has gotten sound legal advice about any particular practice.

(I can't stress enough that I am NOT saying that your company is doing something illegal - I can't comment on the legality of the practice you describe.)
posted by Pax at 8:20 AM on May 23, 2018 [2 favorites]


At least in my state, vacation pay and holiday pay are 2 separate things. Vacation pay you earn through work time and it cannot be withheld and needs to be paid out upon leaving the company. Holiday pay is when you are paid even though you do not work because the business is closed for a holiday. Companies can make policies saying that if you have an unexcused (like a call out, not a planned vacation day) absence before or after the paid holiday that you will not receive the holiday pay.

Can they make you work on Sunday when you normally don't? That depends on your employment status and agreement.
posted by WeekendJen at 8:30 AM on May 23, 2018 [2 favorites]


You need to talk to the Dept of Labor in each state (or city) and/or an employment lawyer. You will not get a definitive answer here.

They can fire you but they will have to pay you for time worked and vacation accrued and every state has strict laws about it.
Time worked must be paid, yes, but not all states require that vacation pay earned be paid out. Minnesota allows the company to decide. New Jersey has no law requiring vacation pay, just that any vacation policies are not applied in a discriminatory manner.
posted by soelo at 8:35 AM on May 23, 2018 [3 favorites]


Call the Dept. of Labor for each state. They should be able to give you a answer.

It's very shitty, and you should say so on glassdoor, indeed, and any other site you can think of.
posted by theora55 at 10:31 AM on May 23, 2018


: "If it matters, it's not that I have any religious objection to working on Sunday, and I'm sure it'd be hard to claim I suddenly did after 6+ years."

People get religion all the time.
posted by Mitheral at 2:00 PM on May 23, 2018 [2 favorites]


I'm curious how the pay is categorized in the time keeping system. For the religious holiday do they put in a pay code or do they leave it blank? On the Sundays you're required to work, do they put in a pay code + time? That might be good information to have when you speak the Department of Labor for your state.
posted by toomanycurls at 10:14 PM on May 23, 2018


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