We ask that all employees submit their vacation requests by March 1, but most do not. Can we assign vacation time to employees who do not sign up to take vacation?

The employer has the right to schedule vacations. Labor Code Section 227.3 provides, in brief, that vacation is vested and requires unused vacation to be cashed out at termination. Further, there can be no forfeiture, such as a “use it or lose it” policy. The employer does have the right to manage the vacation program by setting vacation dates.

The Labor Code section states the following:
“Unless otherwise provided by a collective-bargaining agreement, whenever a contract of employment or employer policy provides for paid vacations, and an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance with such contract of employment or employer policy respecting eligibility or time served; provided, however, that an employment contract or employer policy shall not provide for forfeiture of vested vacation time upon termination. The Labor Commissioner or a designated representative, in the resolution of any dispute with regard to vested vacation time, shall apply the principles of equity and fairness.”

Send Out Requests
One suggestion is to send out requests around the first of the year, giving the employees two choices of dates and make it clear that in any case of conflict, seniority or any non-discriminatory method will be used to determine who gets their preference. Also make it clear that company needs will prevail.

If an employee fails to respond, the company has the right to assign vacation dates. Managing vacation programs in this manner will help to alleviate end-of-the-year problems and high vacation balances.

Exempt employees can be required only to take vacation in full week increments. The State Labor Commissioner takes the position that exempt employees should be given at least 90 days notice of mandatory vacation. Exempt employees can voluntarily take vacation for shorter periods without notice with employer approval, however.

Exemptions
Employees may have been scheduled for vacation, but events occur such as Pregnancy Disability Leave, Family Medical Leave Act, California Family Rights Act and Paid Family Leave. Depending on the timing, this could affect vacation schedules. These acts have to be complied with.

Chapter 17 in the 2010 California Labor Law Digest from the California Chamber of Commerce covers vacations, holidays and paid time off. This information is also online at HRCalifornia.com.

Where Can You Get More Information?
Check out the Compliance Section of the Chamber Store. The Chamber is where you can get the HR Handbook for California and the California Labor Digest at the LOWEST price! Napa Chamber members are able to receive all of their required products at greatly reduced rates. Contact Lynn Page at (707) 254-1145 or click here to visit our online Chamber Store.