Doesmy employer have to pay me my shift differential whenI usemy PTO?

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Doesmy employer have to pay me my shift differential whenI usemy PTO?

I am taking vacation and will be using my PTO which I have accumulated working nights. I get paid a shift differential. I was told that I will only be paid my standard pay without the shift differential when I take vacation. Is this legal?

Asked on November 17, 2010 under Employment Labor Law, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Yes, that is perfectly legal. A shift differential, to begin with, is NOT something required under law; it is something that an employer voluntarily choose to pay. Since it's not required under law, the employer has substantial discretion to set terms and conditions for it, such as not paying it for PTO. Furthermore, cases have consistently held that special or above-normal-wages payments, including those required by law (i.e. overtime) only have to paid when work is actually done that meets their criteria. So there  is no need to pay performance bonuses or overtime for PTO hours, for example--or to pay a shift differential for taht time.

IF the employer has previously paid employees using their PTO their shift differential, you'd have a good case that the employer's behavior has established an implied contract to do so, an implied contract you may be able to enforce; but without a past practice or precedent of doing so, you probably don't have any grounds.


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