Sick Days policy

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As an Exempt Department Head, I was given 8 sick days a year. I recently droped down to a Non-exempt employee (by my choice) who has to earn sick days quarterly. Our policy states that if you quit or retire, you do not receive any payment for any exempt sick days on the books since they were given to you and not earned. If you have Non-exempt earned sick days, you will be paid them in your last pay check.

My problem is that I had 160 hours of exempt sick time on the books before I changed to a non-exempt level. Our policy does not state anything about loosing these hours when you change from an exempt to a non-exempt employee. I made this change last December and was never informed about this and the sick hours have remained on my pay stub until I informed them that I needed to use the hours with a FMLA leave to have Back Surgery in June. I challenged them and they agreed that there was no policy. They stated that this is the way things were done and that wage and hour would look at the present of the way things have been done in the past. I know of other employees in the company that have had these sick hours frozen to use if they ever got sick. These hours have now been removed off my pay stub.

How can I fight them? They have agreed that there is no policy. Why should I have everything striped away when I never called in sick and built up this savings of sick days? It would of paid me to stay a department head and went out on the FMLA. What right do they have to wait until I need to go out on disability to then tell me I don't have these days and then remove them from my pay stub 6 months after I changed my status?

DO I HAVE ANY RIGHTS??? PLEASE ADVISE !!!

 

[Attorney_Replogle]

First of all, what is going to hurt the employer is the lack of a policy. Next, when you were exempt, those sick days were part of your terms and conditions of employment. So after accumulating so many of them, then making the change to non-exempt status, you should definitely be allowed to use those up for this back surgery and recovery.

The employer's sudden decision to deny you the use of those hours, then taking them away, after you had advised them of your upcoming back surgery smells of potential discrimination.

I would thus urge you to consult with an employment law attorney near you. The goal for you, I would imagine, would be to have the employer credit you with those 160 hours and allow you to take the FMLA. Plus, make sure they take no retaliatory actions towards you. You should be able to find an employment law attorney near you at attorneypages.com

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Mark B. Replogle