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Any attornies out here? Help with my vacation benefits

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posted on Nov, 30 2010 @ 05:11 PM
So, I have always been allowed to take vacation whenever I wish. I always like to wrap my vacation days around a federal holiday (paid day off), as it always extends my consecutive days off during a calendar year. I was just informed that this practice is no longer allowed.

Example: If I wanted Thanksgiving week off in the past, I simply used 4 vacation days and wrapped them around Thanksgiving (since the entire office is closed on Thanksgiving). As of today, we are no longer allowed to wrap our vacation around holidays. Somehow, this seems illegal to me. Does anyone know of any federal or state (Texas) laws that this new policy conflicts with?

The way I see it: I get paid vacation. I should be able to use it as MY discretion, not the company's. Certainly this is illegal. Anyone have insight? I mean real, factual, statute protected insight? I may have a class action suit on my hands vs. one of the largest insurance companies in the US.

posted on Nov, 30 2010 @ 05:38 PM

Originally posted by Aggie Man
The way I see it: I get paid vacation. I should be able to use it as MY discretion, not the company's. Certainly this is illegal. Anyone have insight? I mean real, factual, statute protected insight? I may have a class action suit on my hands vs. one of the largest insurance companies in the US.

Earth to OP. It's not about you. Since when is your vacation time at YOUR discretion? It's at the company's discretion. I've used that trick myself, but it is not my "right" to use it. I gamed the system and so are you. With many companies you don't even have the right to say when your vacation will be. If it's a seniority system, for example, it will be a long time before you even get to use your vacation during summer months. In the absence of an employment contract (group or personal) that says otherwise, you really have very little recourse. It's not illegal for a company to change its policies. It is also not illegal for an employer to tell you you can't take X days vacation at Y time. One thing that can get a company in trouble is if it does not follow its own rules. You likely have an employee handbook. If it expressly says you are allowedr to create longer vacations by wrapping around holidays, well, lucky you, but I'll bet you a vacation day it does not.

As an employer I can see why your scheme might be a problem. Everyone wants the holidays off. If you and Karen and Joe and Jim and Mark all decide they want to do the same thing, there is no coverage. I have the right as an employer to say, no, you can't all take the same days off. This may be the reason your employer is doing this, to stop the problem altogether. An insurance company runs 24x7. How would you like to be a policy holder with a claim and be told, sorry, too many people wanted the holidays off, so call us back in a week or two.

It MAY be that because of this company's past practice in allowing it you could make the case that this was a change in benefits. Also, if this is just a supervisor's edict and not company wide, you could also make a case. It seems to me to be rather petty for them to do this, but I believe it's within their rights. Bear in mind that you are not losing any days and you're not losing any pay here. It would be difficult to claim any adverse harm here. Think of the jury. Would they be sympathetic? Unlikely.

For all that, there are so many things a company can do to you that are far worse than this. I personally wouldn't hang my hat on this issue. I might try to have a discussion with management, but I certainly wouldn't invoke a lawyer here. I think your dreams of a class action lawsuit are naive. There are no employment statutes that force an employer to grant you vacation time any time you see fit.
edit on 11/30/2010 by schuyler because: (no reason given)

posted on Nov, 30 2010 @ 05:55 PM

Originally posted by schuyler

My biggest problem here is that I like to take the day off before and after holidays like 4th of July, Memorial day, Labor day, etc.

Reason: because I actually go out and celebrate those days and would give the company minimal production the following day. Now, I fear, that I can't celebrate my corporate/national holidays w/o concern for the recourse of my lack of production the following day (since I can no longer take that "extra" day out of my own allotted paid time off). If given the opportunity to take the next day off, I always my work production will suffer; thus putting my job on the line. Whereas before, I actually did my employer a favor by taking the following day off.

I suppose, I still win; however, they lose the production value I previously provided.
edit on 30-11-2010 by Aggie Man because: (no reason given)

posted on Nov, 30 2010 @ 06:15 PM
reply to post by Aggie Man

Legally, companies need to honor their corporate policy/employee handbook. It's like a contract. When you were hired, you are agreeing to those policies, which they are allowed to change, but not on a whim. I'm not sure how far in advance or warning they are required to notify the employees, but they do have to notify people of changes made, especially in regards to employee benefits.

That being said, it's perfectly legal for companies to make reasonable vacation parameters. There are many reasons why a company may need to do this, depending on the business they have, size of company, staffing requirements, etc.

Even so, just because you make a vacation request within the parameters of the employee handbook, most handbooks have the caveat stated that they are not obligated to honor that request.

In-other-words, they are allowed to approve/disapprove vacation REQUESTS. When you say you want to go on vacation during a certain date, you technically are making a request to go on vacation at that particular time. Generally speaking, you should be allowed to make at least 2 or 3 requests, and order them by preference. Then the company reviews the schedule, policy, business needs, and makes a determination as to which of your vacation preferences they can honor.

Legally, the company has to approve one of your requests if they fall within the "contract" of your employee handbook.

Of course, it's poor business practice to "screw with" employee vacation request for the simple matter that it hurts employee moral, and could affect productivity.

To answer your question, the company can legally change the vacation policy if they want to, it's just up to you whether you decide it's a "deal breaker" concerning your decision to continue working there. If enough employees complain and threaten to leave, the company may be forced to reconsider their vacation policy changes.

posted on Nov, 30 2010 @ 06:17 PM
...i'm not a lawyer but i've screwed a few - jk...

...i think schulyer is right... i always had to clear my preferred vacation time with higher-ups - so that means it wasnt up to me... it was up to them and, really, thats how it should be or employees could all pick the same week and shut the company down... think about it...

posted on Nov, 30 2010 @ 06:25 PM
reply to post by harrytuttle

With my company, to be technical, we do not have vacation days; rather we have paid time off. Now, The employee handbook specifically states that PTO can be taken at anytime at the employees discretion (this is, of course, a conglomerate of vacation + sick leave + personal time). Since I have worked there, they have always made us declare our PTO on/or before January 1st of the following year (as if we can predict when we may be sick and need to use that time). I take exception to this new policy because...what if I get sick the day after a paid holiday? what to do? do I go to the Dr. and get a note (at my expense) to prove that I was unable to work that given day?

I always felt like "working" the vacation (PTO) system was a part of job experience. Now it seems to be a punishment.

PS, anyone working in insurance need a claims investigator w/12+ years experience

edit on 30-11-2010 by Aggie Man because: (no reason given)

posted on Nov, 30 2010 @ 06:38 PM
reply to post by Aggie Man

You can take my advice or leave it. I'm not giving you legal advice. If you want legal advice, go pay for it. No lawyer is going to work free or via an Internet forum. I'm telling you a) Vacation time is NOT (repeat: NOT) "at your discretion," even though you've been able to make it so previously. b) Who cares why you want to do it? That is totally 100% irrelevant. What I am trying to get through to you is that you don't have a case because you can't show any harm has been done to you. I am telling you this as a person who has worked in Human Resources for thrty years and has seen this kind of attitude countless times. I've written Employee Handbooks and dealt with policy matters such as this over and over again.

Now I know you don't like what I'm telling you. That's quite obvious. What you seem to want is someone to affirm your beliefs so you can feel vindicated. But sooner or later you will be forced to come to the conclusions I am telling you here. Oh, you'll be resentful about it and you'll blame the company and you'll be saying for years how this is so unfair, but the bottom line here is that the company has the right to govern your use of vacation time. You do NOT have the right to take vacation time as you see fit. End of story. Calling me a provacateur isn't going to change that. Of course, it may feel better for you to remain delusional a little longer, but eventually you will come around.

posted on Nov, 30 2010 @ 06:48 PM
reply to post by Wyn Hawks

it was up to them and, really, thats how it should be or employees could all pick the same week and shut the company down... think about it...

How it should be? Because employees cannot be trusted????

Said like a true "Stick" mentality manager.

For most people the carrot works better. Happy employees make better employees.

It is 1am here. I have been at work since 9am. Do you know why I am still working? Because the company I work for actually TRUSTS me. As a result, when extraordinary business needs arise ( as they do quarterly) I am happy to stay here until the job is done.

Were my company run with the Do it or sod off mentality, I'd have left long ago, recession or not.

Respect your employees, and they will respect you.

posted on Nov, 30 2010 @ 06:51 PM

Originally posted by schuyler
What you seem to want is someone to affirm your beliefs so you can feel vindicated.

It only takes one legal opinion to get someone to take the worries though. Thank you for your input. I apologize for my negative attitude, it's been a rough day. We (me and my subordinates are planning to retain council...even if it's a losing matter). Who knows, we may set a SCOTUS precedent for the laborers. Doubtful, but...what is the cost of trying vs.not trying? Personally, I believe, based upon the wording of out HR employee handbook, I have a legitimate case...I suppose that will be determined in the coming days/weeks/months.

Certainly I wasn't looking for an attorney to affirm my beliefs outright (at no cost to me), but any attorney that feels like I have a case, U2U me, we will get something started; even if it's an out of court settlement. I know how our company works...they would rather settle than leave it to a jury.

What makes this the most painful is the companies unwritten, but strongly implied policy of "you work the hours we tell you; or else risk loosing your job" (i.e., work every bit of overtime we threaten your job with...or else). I know that is illegal; as a matter of fact, perhaps that should be the basis of a lawsuit.

edit on 30-11-2010 by Aggie Man because: (no reason given)

posted on Nov, 30 2010 @ 06:53 PM
reply to post by schuyler

With all due respect, he needs to check with his state employment laws. There are some states that by law once a benefit is given it is like pay and the company owes it to you exactly in the manner they prescribe in their policy book. In some states, like my crappy state the company is pretty much king and does not even owe you benefits if you did not use them before they fire you. You must have worked in one of them states that place corporations on a pillar as compared with the individual. I am fairly sure Texas has labor laws dealing with benefits and whether they are payable per contract or not.

Texas though is one of those states with hardly any laws to protect workers. If he is a contract employee then he may have an issue if the company handbook does not indicate this restriction for use of vacation time. Texas does not also recognize any implied-contract or good faith arguments for employment issues. I would therefore tend to agree with your assertions; however, would state that these assertions are not applicable in all states. Some states actually require companies to pay benefits in accordance with their policy and only change the policy with sufficient notice to the employee.

posted on Nov, 30 2010 @ 07:18 PM
reply to post by Aggie Man

They give it to you, hence they can attach stipulations to it.

Dont like it? Quit.

Man up nancy, life isnt all about having the perfect time frame for vacation.

posted on Nov, 30 2010 @ 07:20 PM
as an aside to this issue:

My company has a history of forcing everyone to declare their paid time off (PTO) prior to the start of the new year. Once declared, those days can not be changed (regardless of illness). is that legal? I mean, if I declare a PTO for may 12 (just to pick a date, because I must) and then I am not sick, nor do I want a vacation day on that do I rectify that, legally? I mean, I must pick my sick days before I get sick. It's a crap shoot.....and, on occasion, I have had to go to the workplace with the flu, etc....because I didn't predict my date with h1n1 in advance. It all seems suspect to me; and highly illegal

posted on Nov, 30 2010 @ 09:36 PM
reply to post by Aggie Man

Well, Aggie, regardless of my contrary beliefs in the matter I still wish you all the best in your pursuit here. Keep us informed of your progress.

posted on Nov, 30 2010 @ 09:49 PM
reply to post by Aggie Man

I've worked for and against insurance companies most of my professional life.
Just completed a 2-year long dispute over disability benefits with CIGNA, and won for the employee.

That being said, Texas is an "at will" state. Absent an exclusive contract, you work at the employer's "will."

As for vacation/PTO, many employers solved this problem by requiring such discretionary time to be taken in 5-day "blocks." Given the freedom you have to pick and choose, it is entirely within reason for the employer to designate some days "off limits" for such discretionary time off.

As for "sick" days, you have the Federal Family Medical Leave Act that gives you job protection for time off for medical reasons. Documentation may be required, so be prepared. Otherwise, I seriously doubt that your employer requires you to "predict" your sick days - someone is wrong here; either your HR rep or you. While you may be required to declare your preference for a certain portion of your PTO, it is impossible, and thus unreasonable, to require the prediction of true "sick" time.

Given what you've said about it already, it doesn't appear that your complaint is really about "sick" days, but on your ability to declare some days over others at your discretion.

Sorry, but the employer wins here. I've known many employees who could be counted on to be "sick" on the Friday before or Monday after any given holiday weekend. No court and no statute will prevent an employer from protecting itself from such schemes, unless you have a written contract that sets out explicitly the terms of your PTO usage.

Almost 100% of the employee handbooks I've ever seen explicitly state, within the 1st few paragraphs, that it is NOT to be taken as a contract or to otherwise impair the employer's ability to act against or alter the terms of the handbook.

Go back, re-read the Handbook, and see exactly what it says.

If you are truly so unhappy with your situation, perhaps you should be looking for employment as an investigator for some plaintiff's attorney, or freelance. Then, you could probably pick ANY day you wanted to take off.

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