Discretionary Time

[araknis]

What is the name of your state? CA

My employer provides 2 days of "discretionary" time every year. Do standard vacation rules apply to these 2 days (ie. use it or lose it policy)?

 

[pattytx]

In the first place, a Use-It-Or-Lose-It vacation policy in California is illegal.

Vacation pay accrues (adds up) as it is earned, and cannot be forfeited, even upon termination of employment, regardless of the reason for the termination.

See also Question 4 here:
http://www.dir.ca.gov/dlse/FAQ_Vacation.htm

And, although I cannot find it at the moment, my recollection is that "discretionary days" or "floating holidays" that can be taken at any time are treated the same as vacation for legal purposes.

The converse would be, for example, if you got your birthday as one of those days, or the company designated specific days, such as the day after Thanksgiving, as one of the floating holidays. In these cases, since the additional time off is restricted by the company, it would be the same as a company holiday, not vested, and therefore not payable at termination. You can call the California Division of Labor Standards Enforcement to confirm, but I think I remember this correctly.

 

[finniganps]

In the first place, a Use-It-Or-Lose-It vacation policy in California is illegal.

That's not entirely true. Employers can state a maximum amount of time that can be accrued (e.g. 10 weeks). Any time over that gets forfeited -See the Q&A in the link you provided above). This is not illegal as long as the employer provides notice to the employee lettting them know about the policy. Also, many companies send out letters indicating that the employee is getting close and may want to consider taking time off or they will lose the time.

 

[pattytx]

Applying a cap to the vacation balance, over which no vacation will be accrued, has nothing to do with Use-it-or-Lose-it. Once vacation is accrued under the company policy, it cannot be forfeited. What you describe is merely a maximum accrual balance. Use-it-or-Lose-it comes into play after the time is accrued. Caps just limit the amount than can be accrued. I know it sounds like merely semantics, but there's a big difference.