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An employee scheduled vacation time without management approval. The employee plans on taking the vacation without approval. If I don’t want to terminate the employee, can we not grant her vacation pay and not pay her for the time off? We are located in NJ.
Asked on October 7, 2016 under Employment Labor Law, New Jersey
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 4 years ago | Contributor
It is very difficult to withhold vacation pay, even if the employee did not get approval for the vacation, because employees are entitled to their vacation pay--it is part of their compensation, which they worked for. Courts are reluctant to allow employers to withhold compensation which the employee earned, so if she were to sue you over this, despite you being technically in the right, in my experience, there is a reasonable chance a court would rule in her favor.
You are on stronger ground if you discipline her in any of a number of other ways, such as: 1) you could reduce her wages or salary after her vacation as punishment for taking unauthorized vacation, including until you have recovered an amount of money equal to the vacation pay she received; 2) you could reduce how much vacation she earns next year; 3) you could demote her or change her duties, title, or shift; 4) you could suspend her.
Discipine and punishment that takes effect going forward meets much less resistance from the courts than actions affecting already earned benefits or compensation.
Note that if she has a written employment contract, you cannot do anything which violates the contract.
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