Can a specific supervisor deny PTO when other supervisors allow it?

UPDATED: Aug 21, 2011

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Can a specific supervisor deny PTO when other supervisors allow it?

I was on FMLA due to a hole in my heart. I had heart surgery. My direct supervisor then told me that I was not allowed to take the 10 days of vacation time earned for the year because he “wanted to help me build up my vacation balance”. My balance was depleted due to having been on FMLA. He also would not allow me to do any extra duties for a 6 month period or “until my vacation balance was built up to 40 hours”. There is no policy on how many hours need to be accrued in our vacation or sick leave bank. Is this legal?

Asked on August 21, 2011 Colorado


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

It may be legal, if--

1) you are allowed to carry over the days to a later time, so you don't lose them (if you would lose them, then by not letting you use them, the company is illegally taking away compensation you earned)

2) there is no policy giving you the right to let you use these days at will, without supervisor permission (if there is no policy, then generally speaking, a supervisor can say when vacation may or may not be taken)

3) in this treatment, you are not being discriminated against on the basis of a protected category (e.g. you're not being treated differently because of your race, sex, religion, age over 40, or disability)

Probably the most important factor is 1) above--as long as you don't lose the days, it's not unreasonable for a company to say that an employee should not take vacation when he or she has already been out that year for FMLA leave. But if you would lose the days, then not only is it likely a breach of the implicit employment contract between you and the company--you're not getting "paid" the vacation days you agreed to work for--but it's also probably illegal retaliation against you for using FMLA leave.

Note that nothing requires all supervisors to make the same decisions, so long as they are illegally discriminating and not violating an employment contract of some kind.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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