I was accruing PTO since February 2019 and now was just demoted to a position with no PTO. Was said you could not collect even until after a year end of my old status. Am I still owed this even with the demotion. Sad IN California. HELP
Manager accruing PTO. Now demoted with no PTO. Do I get that back or is it gone.
1 answer | asked Nov 1, 2019 8:27 PM [EST] | applies to California
Answers (1)
Yes, the money is still yours. In California, PTO is a combination of sick leave and vacation. Usually, PTO can be used for illness, vacation, or any purpose. Sick leave is not vested, by which I mean it is a benefit that does not belong to the employee, although the employee may use the time per the employer's policy. In contrast, vacation time is earned (vested) when accrued. Vacation time is the same as wages in that this time belongs to the employee and cannot be taken away.
If there is no separation between sick leave and vacation – that is, if the two are blended together into PTO and can be used for either purpose or additional purposes – then California law holds that PTO time must is equivalent to vacation time. It belongs to the employee, is earned (vested) when accrued, and cannot be taken away. Vacation and PTO may not be lost for failure to take the time off under a so-called “use it or lose it” policy. (Boothby v. Atlas Mechanical (1992) 6 Cal.App.4th 1595, 1601.)
If an employee's employment ends while the employee still has vacation or PTO on the books, the employer must pay the employee an amount equivalent to the total hours accrued. This mandatory payout is per Labor Code 227.3 and Suastez v. Plastic Dress-up Co. (1982) 31 C3d 774. This because vacation and PTO are the same as wages, and all wages must be paid at the time or terminationif the employer ends the employment, or within 72 hours of termination if the employee resigns without notice.
While it appears your employer either doesn't know or doesn't care about the law, there may be many reasons not to do anything about it just now. Taking action could result in the loss of your job due to employer retaliation. While it is illegal to retaliate against an employee who makes a good faith complaint about unlawful pay practices, all the law does is provide a remedy after the fact; the law cannot prevent your employer from taking retaliatory action in the first place. You may find yourself out of a job and unable to find a replacement. No law suit, no matter how successful, can ever give you back the lost time and lost peace of mind that are taken from you during any litigation.
There is an alternative, though it involves waiting. Understand that the employer's obligation to pay accrued vacation or PTO is not triggered until the employee's employment ends, when it must be paid as described above. Therefore, when your employment with this employer ends, if the employer does not pay you your accrued and vested PTO, then you can pursue a wage claim or lawsuit if you are not paid everything as required, provided you are still within the time limit (see below).
You will need documentation to support your case. Keep your documentation at home, not at work, to make sure it remains private and doesn't disappear. For documentation:
Keep track of all the information related to this situation. Write down the details using names, dates, location, witnesses, times of day – as much as you can. Save copies of any documents. You may want to send the employer an e-mail (which you print a copy of and take home, or e-mail to your home e-mail address) confirming that the employer told you that your PTO will not follow you to your new position … that you will lose the time. This will provide some documentation.
Then, after your employment ends, you can file a claim for unpaid wages with the Division of Labor Standards Enforcemen (DLSE). The DLSE is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm. You have THREE YEARS from the last day of work to file a Labor Commissioner claim for unpaid wages. Under some circumstances, you will have four years but it is safer to file your claim witin three years.
If you pursue a lawsuit in state court, you have the potential to recover unpaid wages going back FOUR YEARS (instead of three) from the date you file suit, per Business & Professions Code sections 17200 et seq.
If the employer does not pay a terminated employee as required, there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit. (Labor Code section 203).
Your best bet is always to consult one or more experienced employment law attorneys with whom you can discuss the details of your situation and go over your time limits. Please do not rely on general information from a public site such as this.
To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.
I hope there is a good resolution to this situation.
Marilynn Mika Spencer
San Diego
posted by Marilynn Mika Spencer | Nov 1, 2019 9:38 PM [EST]
If there is no separation between sick leave and vacation – that is, if the two are blended together into PTO and can be used for either purpose or additional purposes – then California law holds that PTO time must is equivalent to vacation time. It belongs to the employee, is earned (vested) when accrued, and cannot be taken away. Vacation and PTO may not be lost for failure to take the time off under a so-called “use it or lose it” policy. (Boothby v. Atlas Mechanical (1992) 6 Cal.App.4th 1595, 1601.)
If an employee's employment ends while the employee still has vacation or PTO on the books, the employer must pay the employee an amount equivalent to the total hours accrued. This mandatory payout is per Labor Code 227.3 and Suastez v. Plastic Dress-up Co. (1982) 31 C3d 774. This because vacation and PTO are the same as wages, and all wages must be paid at the time or terminationif the employer ends the employment, or within 72 hours of termination if the employee resigns without notice.
While it appears your employer either doesn't know or doesn't care about the law, there may be many reasons not to do anything about it just now. Taking action could result in the loss of your job due to employer retaliation. While it is illegal to retaliate against an employee who makes a good faith complaint about unlawful pay practices, all the law does is provide a remedy after the fact; the law cannot prevent your employer from taking retaliatory action in the first place. You may find yourself out of a job and unable to find a replacement. No law suit, no matter how successful, can ever give you back the lost time and lost peace of mind that are taken from you during any litigation.
There is an alternative, though it involves waiting. Understand that the employer's obligation to pay accrued vacation or PTO is not triggered until the employee's employment ends, when it must be paid as described above. Therefore, when your employment with this employer ends, if the employer does not pay you your accrued and vested PTO, then you can pursue a wage claim or lawsuit if you are not paid everything as required, provided you are still within the time limit (see below).
You will need documentation to support your case. Keep your documentation at home, not at work, to make sure it remains private and doesn't disappear. For documentation:
Keep track of all the information related to this situation. Write down the details using names, dates, location, witnesses, times of day – as much as you can. Save copies of any documents. You may want to send the employer an e-mail (which you print a copy of and take home, or e-mail to your home e-mail address) confirming that the employer told you that your PTO will not follow you to your new position … that you will lose the time. This will provide some documentation.
Then, after your employment ends, you can file a claim for unpaid wages with the Division of Labor Standards Enforcemen (DLSE). The DLSE is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm. You have THREE YEARS from the last day of work to file a Labor Commissioner claim for unpaid wages. Under some circumstances, you will have four years but it is safer to file your claim witin three years.
If you pursue a lawsuit in state court, you have the potential to recover unpaid wages going back FOUR YEARS (instead of three) from the date you file suit, per Business & Professions Code sections 17200 et seq.
If the employer does not pay a terminated employee as required, there is a penalty against the employer and in favor of the employee: the employee’s pay continues as if the employee were still working, every day until the employer pays in full, up to a maximum of 30 days. The employee is entitled to interest at 10 per cent per annum on the unpaid amount. Also, if the employee must go to court to get his or her pay, then the employee is awarded reasonable attorney’s fees and costs of suit. (Labor Code section 203).
Your best bet is always to consult one or more experienced employment law attorneys with whom you can discuss the details of your situation and go over your time limits. Please do not rely on general information from a public site such as this.
To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.
I hope there is a good resolution to this situation.
Marilynn Mika Spencer
San Diego
posted by Marilynn Mika Spencer | Nov 1, 2019 9:38 PM [EST]
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