Legal Question in Employment Law in California

My company El super is using the use it or lose it vacation hours policy.which is illegal in California I've been working for them for 5 years never taken a vacation but yet for the past 3 years have had 80 hrs and it has not accumulated I should have at least 240hrs or more I don't even know how long they have been doing this in California. What do you think I should do because from what I understand these hrs are considered earn wages and they are taking them from us every year if not used which would be theft and embezzlement and fraud if I'm not mistaken.

Asked on 11/30/21, 2:16 pm

2 Answers from Attorneys

You are correct that earned vacation wages are generally considered "wages" and an employer may not force an employee to forfeit earned vacation hours if they are not used (i.e., "use-it-or-lose-it"). However, an employer is allowed to "cap" the number of vacation hours that an employee accrues. For example, the employer can say that employees do not accrue any additional vacation once they accrue 80 hours, unless and until they use some of the accrued 80 hrs.

If you feel your employer has an unlawful vacation policy (or any other wage policy), you should consult with an attorney regarding your potential case. You can also go to the Labor Commissioner to file a wage claim.

Good luck to you!

Tuvia Korobkin

Haines Law Group, APC


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Answered on 11/30/21, 3:48 pm
Timothy McCormick Haapala, Thompson & Abern, LLP

I agree with the previous answer. Capping is not the same as forfeiting vacation hours. Employers legally can encourage employees to take their vacation by not giving them any more at a certain point until some is taken. The vacation wages aren't being taken back, but rather are not being earned. In a way it's like a pay cut. They could tell you they are going to cut your pay tomorrow and as long as they pay you your original rate for today, its legal. They just can't retroactively cut your pay. Likewise, they can't take any of those 80 hours away, but they can stop giving you more.

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Answered on 12/03/21, 4:29 pm

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