Can my boss prorate vaction days to one a month.

After working for an employer for seven years and start a new year can my employer prorate my vacation days to one day per month and have no contract to do this or am I entiteled to take my vacation days in full if I choose. I am recieving two weeks paid vacation and would like to take 10 days in May and my begining year starts March 1. I have only taken 2 vacations on seven years and have lost the time.

1 answer  |  asked Feb 3, 2003 09:38 AM [EST]  |  applies to New York

Answers (1)

David M. Lira
Changing the Terms of Employment

I'm sorry but I don't fully understand your query as written. For this reason, I will re-cast your query to a form that I can answer. I hope the answers are helpful.

Lets assume that the employer started by giving all employees 2 weeks (10 days)vacation after the employee had complete 1 year of service. For the moment, we'll forget about the situation a new relatively employees, and deal only with employees with 2 or more years of service. Let's also say that as of the 1st of each new year, the practice was that the 2 weeks of vacation was put in each employees vacation bank. In addition, employees were allowed to carry over vacations from one year to another.

Now, as of 1/1/2003, the employer changes the way you get your vacation. Rather than get 10 days on 1/1/2003, you get only 1 day. Each month after that, the employer puts in one more day of vacation, up to 10 days in a year. Further, vacation is now "use or lose," that is, you can't carry-over vacation from one year to the next.

Can the employer change the way employees earn and accummulate their vacation? Yes. The reason is the employment at will doctrine. The basic statement of the employment of will doctrine is that an employee can be fired for any reason or no reason at all. Courts have interpreted this basic rule to also mean that an employer can change the terms of employment at any time, for any reason or no reason at all. Thus, an employer can increase or decrease the number of vacation days you are entitled to. The employer can even stop giving you vacation at all. The employer can also change the method by which you earn or accrue vacation.

But let's say an employee on 12/31/2002 still had 6 days of vacation. Has the employee lost that vacation with the new year. I don't think so. Vacation is considered to be earned. Once earned, it cannot be taken away unless at the time it was earned there was a term making the vacation contingent in some way. Because in 2002 vacation was not use-or-lose, the employee should be able to carry over that vacation to 2003. However, if we were taking about 2003 vacation carrying over to 2004, in that case, the employee would have lost the 6 days because in 2003 that was how vacation was earned, with the understanding that it was use-or-lose.

Does a lot of this sound terribly unfair? Yes, it does, but it seems to be the result the law allows.

posted by David M. Lira  |  Feb 3, 2003 7:55 PM [EST]

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