Can my boss write me up for taking time off when I have vacation time?

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Can my boss write me up for taking time off when I have vacation time?

I am the primary caregiver for 2 completely disabled parents. My dad is very sick. So I have vacation time but my boss won’t let me take it. He either does leave without pay, or makes me work on my days off, because I was gone earlier in the week. We have a policy for the company that I work for that says 3 days no call, no show and you are fired. Also, I tried for FMLA, he said I couldn’t get it because I hadn’t worked a year. I have worked 16 days in a row without a day off. Is any of this even legal?

Asked on May 17, 2012 under Employment Labor Law, South Dakota

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

It may be legal.

1) First, you may not be eligible for FMLA, though you do not need to take your employer's word for it. You should review the FMLA eligibility criteria, found at the U.S. Department of Labor's (DOL) website and compare them to your situation. In brief, if the employer has at least 50 employees, you have worked at least 12 months for this employer,and have worked at least 1,250 hours over the past year, you would be eligible.

2) An employer cannot keep you from taking vacation indefinitely or foreover--if it does, it is effectively breaching its agreement with you in regards to compensation, by not letting you have part of the compensation, vacation days, you worked for--but employers do have significant discretion about *when* they let you take vacation, especially if your absence would impact coverage, workflow, deadlines, staffing levels, etc. So if the employer is never letting you take vacation, you may have a legal claim; but if the employer is simply putting restrictions on when you can use your vacation days, that is most likely legal.

3) An employer can make you work any number of days without a day off--there is no legal requirement for weekends, days off, etc. If you are an hourly employee, however, you must be paid for all hours worked, including overtime whenever you work more than 40 hours in a week.

4) Except to the extent you are guaranteed leave by a leave law, like FMLA, the employer does not need to give you time off to take care of your parents--employers do not need to take employees' families' needs into account, except as required by a law like FMLA.

5) Employers may terminate employees who take unapproved or unexcused leave or don't show for work.

From what you write, it may be that if you can never take your vacation days, you may be able to sue your employer for the value of those days or for a court order allowing you take them (though of course, lawsuits have their own costs), but otherwise, it seems that what your employer is doing may be legal.


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