Vacation Benefits

I currently work for an organizaton in the State of Virginia and our HR department has changed its policy regarding vacation. Instead of having to earn your vacation and then be allowed to take it, you are given your vacation up front and have until your anniversary date to use it up. This allows a new employee to have vacation immediately and not have to wait a year to use vacation. The problem with this policy is that you actually can use vacation before you accrue it, leaving the possibility that an employee has taken more vacation than he has actually earned up to that point in the year. Part of this new policy requires that if you are terminated/resign, etc. the company will deduct from your last paycheck any vacation that has been taken but not yet earned. My question is - Is this legal? I was under the assumption that a salaried individual (we are all salaried here) cannot be docked pay under any circumstances without the approval of the employee, except for federal garnishment of wages, etc. Please clarify the law on this for me

I was under the assumption that a salaried individual (we are all salaried here) cannot be docked pay under any circumstances without the approval of the employee.

That is incorrect. An employer CAN legally dock an exempt employee's salary with or without their permission under the following conditions:

1.) In the first or last week of employment, if the entire week is not worked
2.) When you are on FMLA
3.) In a company with a bona fide sick time policy with a reasonable number of days, when you either are not yet eligible for sick time or you have already used all the time available to you, and you call in sick
4.) When you take a day off for strictly personal reasons
5.) If you have been suspended for a major safety violation
6.) If you have been suspended for the violation of a written company policy which concerns workplace conduct (sexual harassment, violence in the workplace, drug/alcohol on the job, etc.) and which applies to all employees.

In my state the policy you describe is legal, according to my state's DOL. Your state may be different, since in my state vacation time is considered wages (and thus the time taken without being earned represents an overpayment of wages) but that is not the case in your state - VA does not consider vacation time to be wages. You will have to contact your state's DOL for a definite answer.

reply

If it helps anyone we are a small non-profit organization with less than 50 employees (35 to be exact) so I know we're not bound by FMLA. I was hoping I wouldn't have to call the DOL so anyone who can help me on this I would much appreciate it. I am trying to get this information before it becomes approved company policy (it isn't yet) and I'm trying to show evidence to the HR guy of this (our HR guy has only taken 1 seminar on HR, that's the extent of his experience)

The fact that you are a non-profit does not make any difference; nor does the fact that you are not under FMLA. Neither has anything to do with this issue.

I don't know why you're so adverse to calling the DOL. I'm not suggesting you file a complaint; I'm suggesting you call and ask a question. You do not need to identify yourself or your company, and you do not even have to tell them whether you are an employer or employee. None of the regular responders here are from Virginia, and the DOL can give you specifics that you can provide to your HR manager.

What are you going to do if it turns out that the policy is legal?

Called VA DOL

Do I need to call the State or Federal Deparment of Labor? I called the state of VA DOL and they told me (as I already knew) that VA doesn't have any laws concerning vacation at all so they could not give me an answer as to whether or not this is legal.

Called Federal DOL

I just spoke with the Federal DOL and they told me that such a policy would be considered an advance on a salary and so they could legally dock an employee's pay for this. I hope this helps someone else.