With Memorial Day behind us and the Fourth of July quickly approaching, employees are anxious to schedule summer vacations and employers are receiving vacation requests. Inevitably this means that employers are faced with the common problem of competing vacation requests. Most employers dread the prospect of dashing an employee’s hopes of a vacation, but sometimes it is necessary.
In order to keep the business running smoothly, an employer may have no choice but to deny an employee’s request due to business needs or because another employee has already been approved for vacation at the same time. In response, some employees may ignore their employer’s decision and take off work anyway.
When faced with this situation, employers should carefully consider (1) how to respond to competing vacation requests, and (2) how to handle employees who ignore an employer’s denial of a vacation request. Improper handling of the initial request or the response to an employee who ignores a denied request could lead to a host of legal issues.
In handling competing vacation requests, be vigilant about treating employees equally and consider the following:
Follow the written vacation policy.
Most states do not require employers to provide employees with paid vacation days, but if paid vacation time is provided, state laws often contain rules and limits. Although also not legally required, if an employer provides employees with vacation time, the employer should have a written vacation policy in place. Then, when faced with vacation requests, the employer should follow that written vacation policy. Whether or not a written policy is place, the employer must be careful to treat requests uniformly based on objective criteria. Employers should not prioritize vacation requests from their best employees as a reward for good performance. A decision based on subjective criteria is ripe to be scrutinized as discriminatory conduct, and at least could breed resentment amongst employees. Most employers are best served by a “first come, first served” policy for approving requests for vacation.
Vacation may be restricted on certain days or weeks.
In general, employers are largely free to determine when and how much vacation employees may use. For example, an employer may prohibit employees from using their vacation during busy season or on certain days or weeks. Employers may also set notice rules requiring employees to give advance notice of vacations or maximum duration requirements. If an employee requests vacation that violates the employer’s policy, employers must treat all employees equally and should consider whether denying the request might violate federal, state, and local laws that prohibit an employer from denying vacation requests because of race, gender, religion, disability, or other prohibited discriminatory reasons.
Limits may be placed on the number of employees on vacation at one time.
An employer is not required to accommodate every employee’s vacation request. The business needs to continue operating, and employers are permitted to limit the number of people who can take vacation days at one time. The employer’s written vacation policy should include such limitations and a method for resolving conflicting requests for time off. In general, however, if an employee requests vacation during a time when one or many other employees have been approved for vacation, the employer may deny the employee’s request.
If the vacation request is denied, but the employee takes off anyway, the employer should consider the following:
Absenteeism policies may be triggered by an unexcused absence.
If an employer wishes to take disciplinary action against an employee for taking unapproved vacation, the employer should follow its written policy regarding absenteeism. The employer should also consider whether exceptions have been made to the employer’s absenteeism policy in the past. It is extremely important for the employer to discipline the offending employee in the same manner that other employees were disciplined for unexcused absences to avoid a claim for discrimination. If the employer does not have an absenteeism policy in place, the employer should make sure to follow its past practices. This may mean the employer will issue a verbal or written warning and classify the day off as an unexcused and unpaid absence. Before withholding pay, however, the employer should consider whether non-payment will run afoul of the Fair Labor Standards Act (FLSA) or similar state and local laws.
According to the FLSA, non-exempt employees have to be paid only when they work; if they do not work, the employer is not obligated to pay them. The FLSA also permits deductions of an exempt employee’s salary for full-day absences for personal reasons (other than sickness or disability) including vacation. However, typically deductions for partial day absences are not permitted.
State law may require pay for vacation time upon termination.
In lieu of progressive discipline, the employer may decide to terminate the employee who skipped work to take time off despite the employer’s denial of their vacation request. Again, it is important to examine whether this course of action is consistent with how past absenteeism has been handled. In addition, the employer should carefully contemplate whether upon termination the employee will be entitled to their accrued but unused vacation time. In some states, paid vacation time is considered wages, which are earned and must be paid. Even in states that do not have laws that classify vacation time as wages, under state law the employer may be required to pay vacation unless it has a written policy that explicitly states vacation time is not payable upon termination. Therefore, if an employee quits or is terminated, whether he or she must be paid for vacation time depends on state law and the employer’s policies.
Given the variety of laws that may impact an employer’s decision to grant or deny vacation requests, we encourage employers to consult with legal counsel to carefully draft a vacation policy that includes procedures for handling competing vacation requests.
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