Vacation time and Overtime Laws

If I have to leave early but make up my time in the same week to make an even 40 hour–my employer will use my vacation time without my permission although I already have 40 hrs which then puts me in overtime and only pays straight time. Is this legal?

Asked on May 23, 2018 under Employment Labor Law, West Virginia


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

The fact is that absent an employment contract or union agreemnt to the contrary, only time actually worked counts when calculating OT; vacation (or PTO) does not. Accordingly, vacation time will be deducted ffrom your weekly toatl which means that if you work 40 hours in a week but your timesheet shows an additional 8 hours of vacation pay, then you will be paid for 48 but as straight time. And when you think about, at least you are getting vacation time; employers as a general rule are not legally required to provide paid time off.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

Vacation time does not count for calculation of overtime--only time actually working does. If you clock 48 hours in a week, but 8 of them are vacation hours, you do not receive any overtime, but rather will be paid 48 hours of straight time.
Employers may set any policies they like for vacation time, including requiring that employoees leave early, their overtime must be used to make up the missed time.

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