Can my employer use my PTO without my consent?

UPDATED: Oct 1, 2022

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Can my employer use my PTO without my consent?

I am a salaried employee and during a pay period where my employer could not find enough hours for me to work, they went in and use my PTO to make that pay period having a total of 80 hours without my consent or knowledge. This has happened a number of times and there is no communications or announcements of any forms from my employers to notify or warn me ahead of time that they are

doing this. On one occasion where I requested and being approved for 32 hours of PTO weeks in advance and when they could not find enough hours for me for the PTO week, they use additional PTO hours from me on top of the 32 hours to make the pay period having total of 80 hours. Again, they did this without my consent. They not even notify me of their actions with the PTO changes and I

only find out about it later when I see my pay stub. Is what my employer did legal?

Asked on October 27, 2017 under Employment Labor Law, Arizona


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

It is most likely illegal:
1) If you are salaried, you are paid your daily salary for any day you worked at all, even just an hour. A salaried employee only loses pay to begin with if he misses a whole day at a time, so unless you missed entire days, there would not be any time shortfall to make up.
2) If salaried employees are not paid their full salary for any day they work at all, that is generally held to convert them to hourly (i.e. you don't watch the hours worked of salaried staff, only of hourly, at least for pay purposes--an employer can terminate a salaried person not working enough for one reason or another, but this a different issue). If converted to hourly, you become overtime eligible.
3) It would be legal for an employer to have the rule or policy that if a salaried person misses a whole day at a time, he would have to use PTO to cover it even if he did not specifically consent on that occasion to do so--BUT this requires prior notice of what the policy is, so that by continuing to work, then missing a whole day with knowledge of the policy, you could be said to have consented to the policy.
So this could be legal in the narrow case of they used your PTO to cover or make up for entire days at a time that missed, after you received notice or warning that they would do this. Otherwise, it appears to be illegal. 
If they took PTO to cover hours missed here and there (not full days), you have a concrete loss: the value of that PTO. In that case, you may have a complaint for the department of labor, and/or the basis to sue your employer.

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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