Can an employer force you to take vacation despite hitting your 40hrs?

[eejit]

TEXAS

This is confusing so please bear with me.

Some key points:
- Work at a very important processing & distribution company.
- Used to work 60hr weeks to meet quota.
- Employer cut all overtime for everybody.
- HAVE to clock out at 40hrs, no matter what.
- Also have to maintain 8hr per day schedule.
- To avoid paying us overtime pay, we sometimes have to work late Thursdays, NEVER Fridays.


This week I hit 37hrs on Thursday (today) because we had a huge quota to meet, meaning I would only be allowed to work 3hrs tomorrow (Friday). However, I still "need to maintain my 8hr schedule" but also can't be paid overtime pay. As a result, I'm being told I must hit my 40, clock out at 11, then take the rest of the day as "vacation". 40hrs worked, 5hrs vacation. It is paid vacation, but it is vacation time I need for next month. If you request vacation time but don't have any vacation left, then you will be denied. If you take it anyway, you will be fired. I want to just clock out at my 40 and not get paid for the rest of the day since I've met the 40hr requirement and I want to keep my vacation, but that is "not allowed".

Is this normal/okay for them to do?

 

[Taxing Matters]

Is this normal/okay for them to do?

It’s an odd policy, but I see nothing illegal in it. In most states an employer is not required to provide vacation pay at all, and when they do they are free to set up the policy any way they like. Some states put some limits on what employers can do, like prohibiting use it or lose it policies, but none so far as I know would prohibit this. Texas is not a state with a very detailed labor code, and certainly not overly generous to employees. But it does require employers to follow the written policies on pay, including vacation pay, that they have established. See the Texas Workforce Commission (TWC) article on this here: http://www.twc.state.tx.us/news/efte/vacation_and_sick_leave.html

 

[LdiJ]

It’s an odd policy, but I see nothing illegal in it. In most states an employer is not required to provide vacation pay at all, and when they do they are free to set up the policy any way they like. Some states put some limits on what employers can do, like prohibiting use it or lose it policies, but none so far as I know would prohibit this. Texas is not a state with a very detailed labor code, and certainly not overly generous to employees. But it does require employers to follow the written policies on pay, including vacation pay, that they have established. See the Texas Workforce Commission (TWC) article on this here: http://www.twc.state.tx.us/news/efte/vacation_and_sick_leave.html

Did you catch that they are using this vacation time to avoid legitimate overtime pay? In other words, the OP has to work those 5 hours that are being paid as vacation time. Therefore working 45 hours that week, but being paid straight time (no time and a half) for all of them.

 

[Taxing Matters]

Did you catch that they are using this vacation time to avoid legitimate overtime pay? In other words, the OP has to work those 5 hours that are being paid as vacation time. Therefore working 45 hours that week, but being paid straight time (no time and a half) for all of them.

That's not the way it seemed to me. He said:

This week I hit 37hrs on Thursday (today) because we had a huge quota to meet, meaning I would only be allowed to work 3hrs tomorrow (Friday). However, I still "need to maintain my 8hr schedule" but also can't be paid overtime pay. As a result, I'm being told I must hit my 40, clock out at 11, then take the rest of the day as "vacation". 40hrs worked, 5hrs vacation. It is paid vacation, but it is vacation time I need for next month. If you request vacation time but don't have any vacation left, then you will be denied. If you take it anyway, you will be fired. I want to just clock out at my 40 and not get paid for the rest of the day since I've met the 40hr requirement and I want to keep my vacation, but that is "not allowed".

It sounds to me like he is being required to clock out and go home after hitting the 40, but the company still wants to account for the time he is taking off for the rest of the work day as paid vacation rather than unpaid time. His chief complaint appears to be that doing this takes away the vacation time that he wants to use at another time. If he were being cheated out of overtime with this, I thought he’d have focused on that. If my take on it is wrong and he is working 8 hours on Friday then there is indeed a problem because he should be getting overtime and his vacation time should not be docked for the work time. But if my take is correct and he's going home after working just the 3 hours and the company wants him to take 5 hours vacation for the 5 hours he did not work then as I said before it does not appear that the company is doing anything illegal. Hopefully the OP will come back and clarify which it is.

 

[LdiJ]

That's not the way it seemed to me. He said:



It sounds to me like he is being required to clock out and go home after hitting the 40, but the company still wants to account for the time he is taking off for the rest of the work day as paid vacation rather than unpaid time. His chief complaint appears to be that doing this takes away the vacation time that he wants to use at another time. If he were being cheated out of overtime with this, I thought he’d have focused on that. If my take on it is wrong and he is working 8 hours on Friday then there is indeed a problem because he should be getting overtime and his vacation time should not be docked for the work time. But if my take is correct and he's going home after working just the 3 hours and the company wants him to take 5 hours vacation for the 5 hours he did not work then as I said before it does not appear that the company is doing anything illegal. Hopefully the OP will come back and clarify which it is.

I read it completely differently than you do. I hope that the OP will come back and clarify.

 

[cbg]

I read it the same way Tax did.

 

[PayrollHRGuy]

I read it as the employee is being forced to work more than 40 hours in a week but those over 40 are being called vacation like he wasn't there.

If this is the case it is clearly in violation of FLSA as the employee is being suffered to work more than 40 hours in a pay week and not receiving overtime for the hours over 40.

 

[Zigner]

I agree with LdiJ on this one. OP is told to "clock out" at 40 hours, yet they s/he is remaining "on the job" but using vacation pay for the additional 5 hours that day. What other incentive would the employer have to FORCE that extra 5 hours down the employee's throat?

 

[Taxing Matters]

I agree with LdiJ on this one. OP is told to "clock out" at 40 hours, yet they s/he is remaining "on the job" but using vacation pay for the additional 5 hours that day. What other incentive would the employer have to FORCE that extra 5 hours down the employee's throat?

But in that case, why did the OP mention only his/her concern for losing the vacation time that he/she wants to use later and did not complain about the possibility of losing overtime? That seems odd to me if the OP was actually made to work the five hours. Moreover, it’s hard for me to think that an employer that has the kind of strict rules it does to ensure no overtime is paid would then pretty blatantly violate the law with this attempt to not only avoid overtime but also effectively steal earned vacation time, which may end up itself being a violation of Texas law. Either way, this is an unusual thing for the employer to do.

 

[not2cleverRed]

But in that case, why did the OP mention only his/her concern for losing the vacation time that he/she wants to use later and did not complain about the possibility of losing overtime? That seems odd to me if the OP was actually made to work the five hours. Moreover, it’s hard for me to think that an employer that has the kind of strict rules it does to ensure no overtime is paid would then pretty blatantly violate the law with this attempt to not only avoid overtime but also effectively steal earned vacation time, which may end up itself being a violation of Texas law. Either way, this is an unusual thing for the employer to do.[/QUOTE

I guess we need OP to return and clarify.

If OP is working until 5 PM today, but the compensation is categorized as "vacation" rather than overtime, because overtime is not allowed, that's one thing... And there's a legal issue.

If OP is working until 11 AM today, but his employer is categorizing 11AM - 5 PM as paid vacation, that's another... And I suspect that it is a bookkeeping issue - that there has been a change in who is managing the books. I have found that strange things can happen overnight when a new bookkeeper takes over. Sometimes necessary, sometimes not. (Personal experience with the "sometimes not" = good time to look for other opportunities.)

 

[eejit]

Hi everybody!

To clarify, I clocked out and came home at 11. I hit my 40, and had to put the rest of the day as vacation. I've been told I'll have to do the same again next week and the two weeks after that as we will need to stay late on all the Thursdays of this month to meet the quota. This means I won't be able to use my vacation time for my actual vacation next month and I'll most likely have to cancel it.

Another thing. We get 30 minutes unpaid lunch every day. We have cameras all over (very small building), including over the clock-out machine and in the lunch room. If anyone ever clocks in or out incorrectly or not at all we usually just check the cameras and see what time we came in/out and put it in manually. We've now received an email saying that if we make any mistakes clocking in or out, we automatically receive an HOUR unpaid lunch as punishment, that way they can make us stay an extra 30 minutes at work. Basically there is a lot of work to be done, but they don't want to pay us overtime, so they find little ways around it. I often clock out then I'm asked to stay to do work while off the clock. I always refuse, but some don't.

 

[Zigner]

Hi everybody!

To clarify, I clocked out and came home at 11. I hit my 40, and had to put the rest of the day as vacation.

That is...odd, to say the least. Taxing Matters is correct when he says that this doesn't appear to be illegal.

 

[PayrollHRGuy]

Hi everybody!

To clarify, I clocked out and came home at 11. I hit my 40, and had to put the rest of the day as vacation. I've been told I'll have to do the same again next week and the two weeks after that as we will need to stay late on all the Thursdays of this month to meet the quota. This means I won't be able to use my vacation time for my actual vacation next month and I'll most likely have to cancel it.

OK nothing illegal there. Stupid and useless on the part of the employer but not illegal.

Another thing. We get 30 minutes unpaid lunch every day. We have cameras all over (very small building), including over the clock-out machine and in the lunch room. If anyone ever clocks in or out incorrectly or not at all we usually just check the cameras and see what time we came in/out and put it in manually. We've now received an email saying that if we make any mistakes clocking in or out, we automatically receive an HOUR unpaid lunch as punishment, that way they can make us stay an extra 30 minutes at work. Basically there is a lot of work to be done, but they don't want to pay us overtime, so they find little ways around it. I often clock out then I'm asked to stay to do work while off the clock. I always refuse, but some don't.

This on the other hand may be a problem if they are making you work during that punishment hour. The short answer is you must be paid if you are working.

 

[Ohiogal]

I read it the same way Tax did.

I read it as LD did. Which means the employer is breaking the law. Oh and as Z did.

 

[Ohiogal]

That is...odd, to say the least. Taxing Matters is correct when he says that this doesn't appear to be illegal.

I should have read the whole thread. So now... Yeah...