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Ask The Lawyer By: Daniel A. Gwinn, Esq.

| July 2, 2018

HONEYMOON IN JEOPARDY WHEN BOSS TAKES ‘SAVED’ VACATION TIME

QUESTION: My fiancée and I got engaged last year. We planned to go on a three-week honeymoon to Greece and Italy. I asked our HR person last year if I could save vacation time this year. She said there was no policy that said I couldn’t. So, I only took one of my two weeks of vacation last year, saving the extra week for my honeymoon. When I put in for my three weeks, the new HR person told me I could only have two weeks off per year. If I don’t use it, I lose it. I double-checked our Employee Handbook, and there is nothing in it that says you can’t carry vacation time over from one year to the next. The honeymoon is booked and paid for, so I’ll take a week without pay if I have to – but it doesn’t seem fair.

ANSWER: Michigan’s statute on wages and fringe benefits states that an employer “shall pay fringe benefits … in accordance with the terms set forth in the written contract or written policy.” MCL 408.473. Vacation pay is considered a fringe benefit. So, even if you are an at-will employee with no written contract, you’re entitled to vacation pay if your Employee Handbook says you are.

Whether you can carry earned vacation time over from one year to the next is also determined by a written policy. If a policy is silent on how accrued vacation – vacation time you have already earned – is treated, your employer cannot take it away, without compensating you. Under MCL 408.474, an employer must pay you for any accrued vacation time at termination “unless the withholding is agreed upon by written contract or a signed statement obtained with the full and free consent of the employee.”

In a 2001 case, the Michigan Court of Appeals ruled that employees who accrued vacation time in one year for use in the following year were denied their right to use their accrued vacation time when the company changed its policy. The new policy required workers to use vacation time in the same year they earned it – and workers who had vacation time they had earned the previous year were out of luck. The Court said that while the employer was free to change its policy, it had to compensate the workers for their accrued vacation time or give them the time off as paid vacation.

Bottom line is, because the policy does not state that you lose vacation time if you don’t use it – you get to keep it. You should receive the extra week of paid vacation. (Employers, if you don’t want your workers to save their vacation hours from one year to the next, put it in writing!!)

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.

Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinnlegal.com

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