Do you have the right to paid vacation days?

Although there is no legal requirement that employers provide their employees with paid vacation days, the vast majority of employers do pay for at least some vacation days. According to data compiled by the United States Bureau of Labor Statistics (BLS), more than ninety percent of all full-time workers in the private sector are eligible for paid vacation time.

Employers are not required to provide their employees with vacation time; therefore, those employers that do provide vacation have a great deal of legal leeway in determining who is eligible for vacation, how vacation time accumulates when vacation can be used, and so on.

Which Employees Get Paid Vacation—and How Much?

Because there is no legal requirement that employers provide paid vacation, employers have complete leeway when it comes to deciding how much vacation time to provide and to which employees that time should be provided.

Employers are only able to offer a handful of paid vacation days per year, which is equivalent to only a couple of months’ worth. The length of time off for vacation is typically determined by employers with consideration given to industry standards as well as employee expectations in the given location and profession.

Additionally, employers have the discretion to choose which employees receive paid vacation time and which do not. For instance, they are legally permitted to limit paid vacation time off to only those employees who work full time. In fact, many do: According to the Bureau of Labor Statistics, while 91% of full-time workers in private industry receive at least one paid vacation day, only 34% of part-time workers receive any vacation pay at all.

Employers are prohibited from engaging in unlawful discrimination in the process of selecting employees to receive paid vacation time. Specifically, employers are not permitted to base paid vacation decisions on protected characteristics such as an employee’s race, religion, or disability. Aside from this legal restriction, however, employers are generally free to offer as much or as little vacation time as they deem appropriate and to set eligibility rules that make sense for their particular business.

Vacation Accrual and Caps

In addition, businesses are free to establish their patterns for the accumulation of vacation time. For instance, the policy of the company may stipulate that an employee is entitled to one day of vacation time every month or a certain number of hours for every pay period.

Before new employees can start accruing vacation time, some employers make them wait for a certain amount of time first. In addition, some employers let workers build up a greater number of vacation days as their length of service to the company increases. For instance, a company may permit workers to accumulate three weeks of vacation time each year for the first five years of their employment but permit workers who have worked for the company for more than five years to accumulate four weeks of vacation time annually.

It is also legal for employers to place a limit on the amount of vacation time that employees can accumulate throughout their employment. Many employers take advantage of this right in order to encourage employees to make regular use of their vacation time. Once an employee has accrued the maximum amount of vacation time allowed by the cap, they will not be able to earn any additional time off until they have used some of their accrued time and fallen below the limit.

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Are “Use It or Lose It” Vacation Policies Legal?

It is against the law in some states for employers to impose “use it or lose it” policies, which require workers to give up any accumulated vacation time that they haven’t used by a specified date (for instance, by the end of the year).

In these states, accrued vacation time is treated the same as other forms of earned wages and must be cashed out in the event that an employee resigns from their position or is terminated (this concept will be further elaborated upon below).

A policy that deprives employees of their right to take vacations is, as a result, considered to be wage theft. Although the distinction may appear to be relatively insignificant, these states typically permit employers to place a cap on vacation accrual, which prevents employees from accumulating additional vacation time and prevents employers from taking away vacation time that has already been accumulated.

In some states, the acceptable ratio is specifically outlined, whereas in others, a “reasonable” cap is all that is permitted. For instance, a cap that is equal to twice the annual accrual will likely be considered to be reasonable. Get in touch with the labor department of your state if you want to learn more about the laws that govern your state.

Rules on Using Vacation Days

When employees are eligible to take vacation time is largely up to the discretion of their employers. For this reason, an employer may forbid employees to take vacation time during the company’s busiest season, for instance.

Additionally, employers can establish notice rules that require employees to provide advance notice of vacations. Many employers actually do this to avoid having an excessive number of employees absent at the same time.

Some employers insist that their employees plan their vacations several months in advance. Additionally, employers have the right to set caps on the total amount of vacation time that their staff members can take at once.

The use of accrued vacation time by new employees might also be subject to a probationary period imposed by their employers. Some employers do not permit their employees to take any vacation time during the first three to six months that they have been working for the company. Even if the employees are able to build up vacation time during this period, they are not permitted to use it until the waiting period is over.

Do I Get Paid for Unused Vacation Days?

When you leave your job voluntarily or are terminated for any reason, you may have the right to be paid for any vacation days that you have earned but have not yet used.

Approximately 25 out of the 50 states have enacted laws that require employers to compensate departing employees for any unused vacation time upon termination of employment. (To find out more, take a look at Nolo’s question-and-answer article entitled “Should My Final Paycheck Include Vacation Time?”

Even in states that do not mandate that employers pay out unused vacation time in every circumstance, an employer may be required to do so if the company has a policy or practice of paying out unused vacation time. Find out the laws that govern this matter in your state by contacting the Department of Labor in your state.

Can You Negotiate Paid Vacation Days?

Depending on the specifics of the situation, you may or may not be able to negotiate for an increased number of paid vacation days before accepting a job offer. There is no downside to giving it a shot in any way. However, many employers will insist that the same vacation policy must be applied to every one of their workers. Despite the fact that no statute mandates that they do so, having the same policy simplifies administration, reduces the risk of employee resentment, and keeps the company from being accused of discrimination.

However, if the labor market is competitive or your skills are in high demand, it may be a good idea to negotiate for additional paid vacation days.

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When to Contact an Employment Attorney

Consult with an employment lawyer about your legal options if your employer does not comply with the laws of your state regarding paid vacation, whether this involves failing to provide the minimum amount of vacation time required by law or failing to pay you for vacation days that you did not use.