Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, July 27, 2018

Can You Be Fired For Taking Vacation? Yep.

I'm on vacation, and so are many Americans. You shouldn’t have to worry about your job while you’re on vacation. Or should you? A recent survey found that 49% of Americans are taking no vacation this summer. Sadly, 52% did not use all their vacation days last year, and 24% have taken no vaction in at least a year.

But you're not one of these sad cases. 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.

Should you be worried? 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, or the day they get back. 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. If you don't have a union at work, look into forming one if you are concerned about your working conditions.

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 vacationOne 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. Maybe it's time we join the rest of the civilized world and require some paid leave for workers. Something to think about when you're voting in November and beyond.

And now, back to my vacation, which I am definitely taking as much of as I can.

Wednesday, July 18, 2018

Can You Rescind Your Resignation? Papa John's Former CEO Wants To Know

In light of the recent brouhaha over Papa John's founder/CEO's use of the n-word, subsequent resignation, then statement that he regretted resigning, I thought I'd address this issue I encounter frequently: can you rescind your resignation?

The answer, sadly, is probably not. However, it mostly depends on how much your employer wants you to stay.

In general, if you quit in a huff, you're gone. Most employers will grab onto anything they can to get rid of someone they think is disgruntled or, in the case of Mr. Schnatter, someone they think has become a liability. So think twice about even mentioning the thought of resignation.

If you quit, then say you changed your mind, your employer does not have to allow you to rescind your resignation. Here are some mistakes I've seen people make that employers jumped on to claim "you quit."

Let's talk severance: You're having problems at work. You've reported them. When HR asks what you want, you say you want severance. Guess what? You just quit. I find that any mention of severance originating from the employee is frequently deliberately misinterpreted as a resignation. Instead, wait for the employer to bring up severance as a possibility before you try to negotiate that exit package.

If this keeps up, I have to leave: Sure, things are terrible. But once you say that if certain practices continue, you'll have to go, your employer may jump on that as a resignation even if you had no intention of going. Nobody likes an ultimatum.

If I don't get a raise, I'll have to look elsewhere: If you're trying to negotiate a raise, better benefits, or just about anything else, don't threaten to start looking for a job. Too many employers will start looking for your replacement.

Walk out: If you leave work in the middle of a contentious discussion with the boss or a coworker, even if you think you were threatened in some way, many employers will claim you abandoned your position. Obviously, if you're in danger you need to get out of there. But if there is any alternative, such as calmly walking into an area with witnesses, do it. Even if you call management and say you're leaving or have left and they say something vague like, "Do what you need to do," many will claim you quit.

Pack your things: This is truly bogus, because there can be any number of reasons why an employee might pack up some or all of their personal belongings, but I've seen a number of employers claim that packing equals quitting. This is usually a desperate defense raised absent some real reason for a firing. Still, be careful. If you really have decided to redecorate or something benign, make sure your office doesn't look like you moved out (or tell someone in management in writing what you're doing and why).

But I never submitted my resignation letter!: I hear this all the time. You said you were quitting, then realized you didn't have a job lined up. You come back to work and find that your exit has been announced. You don't need a resignation letter to make a resignation official, any more than employers need a termination document to make a firing official (well, except in some states where they do need to put it in writing, but not here in Florida and not in most states).

No matter how upset you are, unless you have another job lined up, I recommend against quitting. I especially recommend against quitting without thinking it through. If you quit, you've done your employer a huge favor and maybe cost yourself some unemployment benefits. Proving constructive discharge is incredibly hard.

Think before you quit.