Can your employer take your PTO away?

UPDATED: Sep 30, 2022

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Can your employer take your PTO away?

At time of hiring, I was told that I am
a salaried employee. I have been
receiving discretionary time off for
any day off and accruing PTO for hours
worked. I was told today that I’m not
eligible for discretionary time off and
now all PTO that is saved up will be
wiped out to cover the DTO days and
from this point I will only get PTO.
Can they take away my PTO like that
even though I am a salaried employee?

Asked on July 11, 2017 under Employment Labor Law, South Carolina


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

They cannot retroactively take away time they gave you and which you used: getting DTO was part of the terms of the agreement (even if only an oral or unwritten one) pursuant to which you worked in exchange for  receiving certain compensation and benefits, including DTO. To retroactively take those days away and force you to use up PTO for them is to retroactively alter that agreement, which is not legal (no one retroactively alter an already performed contract--since you did the your work, you must get all benefits at that time accruing or coming to you for your work). You could sue your employer for the value of the lost retroactive days.
Prospectively, or going forward, they can take the time away--i.e. they never have to give you DTO. Unless you DTO guaranteed by a still-in-effect (e.g. unexpired) written contract, your employer can take it away at will for the future, the same way that without a written contract, they can change you job title or duties, your pay, other benefits, or even terminate you at will. This part of "employment at will," which is the law when there is no contract.

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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