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Friday, June 8, 2012

Can Your Boss Fire You For Taking Vacation?

It’s summer, and thoughts of vacation are in the air. You shouldn’t have to worry about your job while you’re on vacation. Or should you? A recent study shows that 70% of Americans are leaving some or all of their vacation days unused because they are afraid of losing their jobs.

You’ve earned three weeks of vacation, and wow, did you work for it. You put in for your three weeks, got it approved, and planned your trip. You have non-refundable tickets to your dream cruise. A week before you leave, you mention that Jane will be covering for you while you’re gone. Your boss says, “Oh, you were serious about taking vacation?” You nod, meekly. You ask a coworker what she thinks he meant. You find out that the last three people who went on vacation were fired.

The short answer is: yes. There is no law requiring an employer give you any paid vacation. I hear stories all the time of people fired a few days or a week into a scheduled vacation. Even worse, they’re fired the day before they’re scheduled to leave. They were counting on the vacation pay to cover the cost of the trip. Now they’re left in the lurch.

Vacations are good for you and good for employers. They keep morale higher, prevent employee burnout, reduce stress, and keep you healthier. The good news is that most employers won’t fire you for taking your vacation.

Still, the fear of being fired for taking vacation is justified. If you live anywhere but Montana, you’re probably an at-will employee. That means you can be fired for any reason or no reason at all. Do you have any rights? Yes, but not many.

Here are some circumstances where it would be illegal to fire you for taking a vacation: 

Family and Medical Leave: If you have scheduled surgery, are pregnant with a due date, or have an immediate family member who has scheduled medical care, you might be protected. If you put in for FMLA leave, your employer must let you use your paid sick and vacation time first before they put you on unpaid leave. If you’re fired because you used your vacation for FMLA leave, you may be protected. 

Contract: If your employment contract says you’re entitled to vacation, then firing you for taking it might be breach of contract. 

Employee Welfare Plan: If the employer has an established vacation policy for all employees, then it might be an “employee welfare benefit plan” that is covered under ERISA. That means it might be illegal to retaliate against you for exercising your right to take your vacation benefit. 

Union contract: If your union’s collective bargaining agreement provides for your vacation benefits, you might be able to grieve any termination that violates your union contract. 

Discrimination: The company can’t discriminate based on race, age, sex, religion, color, national origin, disability, genetic information, or age in granting and denying vacations. Some states have other protected categories such as sexual orientation, marital status, and domestic violence victims. They can favor your boss’s vacation over yours though. If the boss’s vacation conflicts with yours, even if yours was preapproved, they can renege on the approval. 

State law: Some states provide other protections. When in doubt, talk to a lawyer in your state about your rights.

Other than these limited rights, you can absolutely be fired for taking your vacation or to prevent you from getting a paid vacation. Here’s some more information you need to know about your rights while taking vacation: 

Wrongdoing discovered: If your employer discovers wrongdoing or even poor performance while you’re on vacation, even if you have a protected right to take it, they can fire you for the wrongdoing they discover. That means if you embezzled and they find out because someone covered for you while you were out, or if you didn’t do a key assignment before you left, then you might not have a job to come back to. 

Layoff: Even if you have protected vacation rights, if there is a genuine layoff at your company, they can probably include you in the layoff. 

Pay after termination: If your employer has a “use it or lose it” vacation policy (some states prohibit “use it or lose it” vacation policies), you probably have no right to be paid for your vacation when you’re fired. However, if your employer lets people accrue their benefits and get paid out when they leave, you are probably entitled to be paid your vacation time when you leave. It’s an earned benefit. 

Last minute demand to cancel: Sometimes the boss will demand you cancel your plans at the last minute. Maybe an emergency comes up, or she just decides she can’t live without you. If you refuse and take your vacation anyhow, you can be fired for insubordination or job abandonment.

Should it be legal to fire you for taking your earned vacation? No. But it probably is. The United States is the only industrialized nation that doesn’t have a law requiring paid vacation. One in four Americans receives no paid vacation.

So take that trip to Europe or your dream cruise. Enjoy! You may have more free time than you expected when you get back.

14 comments:

  1. "I hear stories all the time of people fired a few days or a week into a scheduled vacation. Even worse, they’re fired the day before they’re scheduled to leave. They were counting on the vacation pay to cover the cost of the trip. Now they’re left in the lurch."

    This is the worst employer I've ever heard, as much as possible I don't want to experience this kind of thing. But if it will happen to me, I will surely get an Employment attorney to defend me.

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  2. vacations are "earned"!!!!!!!!! i was always taught that vacations was a "benefit" of a job. and benefits are never earned, they are "given" as an added incentive. when did they become earned?

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  3. Hi Griper! If an employer says you get, say, 1 vacation day per month worked, it is earned. Some policies are "use it or lose it" but many are not. Benefits are indeed "earned." ERISA protects earned benefits such as pension and insurance, along with some vacation. Employees work hard to earn those benefits.

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  4. I have a planned day off tomorrow. Today my boss told me he has been toying with the idea of telling me that I couldn't have this day of vacation (tho I've got several days earned of vacation time/pay). He is upset with me because he says he is dissatisfied with my work. He told me that I took 6 days off work the week before. We only work 5 days of week in the first place...but my father passed away on tuesday. I took off a little less than half a day tuesday and then the rest of the week...three days of bereavement time. He said that taking days off is a privilege and he doesn't have to let me. I feel like he was trying to punish me for taking days off after my dad passed away. Are earned vacation days a privilege?

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    Replies
    1. Lori Williams your boss is an asshole! Sorry about your Dad!

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  5. you say:
    "If you have scheduled surgery, are pregnant with a due date, or have an immediate family member who has scheduled medical care, you might be protected. If you put in for FMLA leave, your employer must let you use your paid sick and vacation time first before they put you on unpaid leave. If you’re fired because you used your vacation for FMLA leave, you may be protected. "

    Where did you get THIS info? I'm wondering because I'm in a situation where my fiancé takes intermittent FMLA for seizures, and she scheduled a vacation for 2 weeks from now last year (and it was approved) but now her work is suddenly saying that because she's used up all her PTO banks (even though the time that was PRE-APPROVED is still sitting in her bank for said vacation) that if she uses any FMLA between now and her vacation, that somehow the vacation magically won't be approved, and if she takes it anyway, it will be considered job abandonment.

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  6. This is an interesting read and one that highlights why there are certain laws and organizations like unions to protect the labor force. Unions are viewed as a vicious circle, and depending on who you talk with, they can be viewed as either good or bad. Unions are there for job protection, a sort of security in the vocation that you are practicing, if you do not have a specialty job or skill, your boss can pretty much fire you at anytime without warning, that is why so many people are either looking to join unions, or become their own bosses. Unions are not bad, not bad at all as long as they are properly managed, and give legitimate grievances.

    Eric | http://www.cope378.ca/join-us

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  7. My fiancé is a full time employee for a year and he requested a two week vacation leave. His HR manager granted the vacation leave but he will be put to a part time employee when he comes back from leave. We think it is so unfair the fact that my fiancé's vacation leave is unpaid and it is okay with him and he is a full time employee on that company.

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  8. I worked as a security officer in an Independent School District since 2012, last August 2015 I E-mailed our manager a formal vacation request for I planned to spend the Christmas in the Philippines up to the 2nd week of January 2016. I have earned enough hours but my request was verbally denied last week of October 2015 which is almost 3 months after I submitted my request. Then I submitted another E-mail dated November 3, 2015 requesting a vacation leave from February 24- March 16, 2016 and only this morning my supervisor told me that our security manager informed her that my request is again denied. Is it lawful to deny me my vacation even if I have enough accrued hours? I was born and raised in the Philippines. I am a legal resident and this is my fifth year in USA. Last 2013, I was allowed to take vacation from thanksgiving up to new year, also in 2015 from March 6-25.

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  9. I had a question my wife got a really bad kidney infection to point where she needed emergency care and I asked my boss if I could leave and take her to emergency can he deny me or is it illegal to deny someone thay

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  10. My huband's boss is saying he doesn't have to pay vacation pay. There is no low here in SC, however he was promised accrued vacation at his hire date.

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  11. My husband requested 3 of his 4 week entitlement of vacation to travel to australia with me when i go back to see family and meet my biological mother. His boss just demoted him to second shift for putting that request in. claimed its becoming an annual occurrence. Dec 2014 jan 2015 rolled over most of that from 2014, and is requesting for Nov 2016 will be 23 months between certainly not annual. Nor do i believe he should be demoting a 10 year employee to second shift over someone whos younger and prefers the evening shift.

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  12. There is SO much wrong with my place of employment and it's vacation "policy" (or lack thereof) that I don't know where to begin. First of all, the system that is in place for earning time was set up by them. Or so I think. Basically, you can begin earning time upon being hired. 8 hours per month. That time coninues to build and can roll over year to year. Now, when you reach 60 days, annything over 60 days must be used, or it is lost. For instance, if you have 65 days, you have 5 days that you must use by the end of that year, or they will be lost. The other 60, however, will continue to stay in your leave balance and you will have them as long as you are employed there. After you have been there for 10 years, you then begin to earn 10 hours per month.

    Then after 15 years, it shoots up to the highest level, which is 16 hours per month. That is TWO vacation days per month. If you already had 60 days, or more, then once you start earning 2 days a month, your use it or lose it portion REALLY starts to build. That is where I am. I have been with the organization for 16 years now. I am at the VERY highest level of vacation accrual. Sounds great, right? Well.....not so fast. It makes no difference that I have 70 vacation days built up. That means that I have 10 days that I must use or lose. I still can't get any time off approved, even if it means losing days. My employer is the one who set up this whole vacation accrual system that we have that goes by number of years of service and allows the rollover of 60 days year to year, etc. I did not come to work asking for that. They chose to give it to me. Yet, when I try to use the time that must be used or lost (any number of days over 60), I get ridiculed. I get met with "well, I lose days ALL the time, it's just the way it goes". The person telling me that is a vice president who makes six figures a year. They don't seem to get that I am just a worker and NOT, I repeat NOT a VP like they are.

    Oh, it gets better. Not everyone is denied vacation requests. Some employees get to take it "whenever they chose to". And do you want to know the REAL kick in the head on that one? The ones who can be off whenever they want are the ones who don't have the time built up because they are hardly ever at work, because, remember, they were told they could be off "any time". So, what do they do? Well, they burn through what time they do have built up, and then some. Meaning that they get to a point where they have to take leave without pay. But, someone like me who has 70 days built up, (10 of which must be used by a certain point) is constantly getting denied. I have even been told that I didn't have any time built up, and/or I haven't been there long enough. Let's see. 16 years of service. 70 days built up. Yet, I don't have the time? Alrighty then.....

    I mean, what gives? Is my employer just blatantly playing favorites, or are they just THAT STUPID? It's probably a combination of both. And I have NO protection against this. I could be fired if I took time off. I am at a point where I just wish I could get payed for the days (all 70 of them would be nice, but I know that will never happen) and then just use that as severance pay while I look for another job. Because, if I can't ever take paid time off, then I'd rather work somewhere else that actually does not offer it, because the end result is the same. And what is it about me not being there? Can they just not do without me? What if I was injured or got cancer and could no longer work? What if my life came to an untimely end? What then? Would they just fold like a cheap tent in a hurricane? I mean, does the organization's survival depend on me? Well, if that is the case, if I am the glue that holds the whole thing together, then the place has BIGGER problems.

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  13. Wow. Companies are really taking advantage of their employees. It's so disheartening. They expect so much and give so little.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.