Disproportionate Vacation Accrual & Exempt Employee Wage Payments

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This is for work performed in California: 1) Vacation Accrual - I just left a company where I was working as an exempt employee. Part of the company's standard vacation policy is that vacation is not accrued until after 6 months of employment. After 6 months, vacation is accrued at an accelerated rate (double the normal rate in year 2 of employment) to "make up" for not accruing vacation in the 1st six months. The policy is in place to encourage employees to work for at least six months, and the accelerated accrual rate, as it was explained to my by the ex-employer, was to act as incentive.

In the DLSE Enforcement Manual, section 15.1.5 states: "Earnings Must Be Proportional. The anniversary dates on which entitlement to vacation pay are based must provide for an earning of a proportionate share of the agreed vacation. Arbitrary dates or accelerated earning periods which would allow for a disproportionate rate of earning are prohibited. (Such plans could possibly entitle an employee who works only one or two days to the same amount of vacation as an employee who works as long as six months.)"

Given the above section of the enforcement manual, is it possible that I would have actually been accruing vacation in the 1st six months of employment?

2) Exempt Employee Wage Payment: Recently, our company closed down for 2 weeks. However, during the two week furlough, I was asked to work 2 days the first week, and was permitted to work 1 day in the second week. I was paid my normal salary during this time, however, now that I have left the company, my former employer is demanding I return the salary they already paid me during the furlough. The DLSE enforcement manual states:

51.6.14 No Deduction From The Employee’s Salary May Be Made For Absences Occasioned By The Employer Or By The Operating Requirements Of The Business. If the employee is ready, willing and able to work, deductions may not be made for time when work is not available. This rule, too, is subject to the general rule, under the current DLSE enforcement policy, that no salary need be paid to an exempt employee when no work is performed within the workweek. Example 1: If an employer choose s to close his or her business for three days, exempt employees, in order to continue to be exempt, would have to be paid for the full week if they were ready, willing and able to work during that workweek but were prevented from doing so because of the employer’s action closing the business. Example 2: If an employer chooses to close his or her business for a full week, exempt employees would not be entitled to any salary for that week, providing, of course, that they performed no work for the employer.

Given the above, would my former employer be allowed to recover the wages that they paid?

Thank you for reading this long post!!!

-- Donna Williams (donna@superbound.com), March 24, 2004

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