PTO earned

UPDATED: Oct 1, 2022

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PTO earned

I was told by HR that I have been accumulating the wrong amount of PTO from the
day I started my job. The amount I collected each month was 3.36 hours per month.
I was corrected by HR and told that I should have collected 8 hours my first year
and 9.33 hours after that. What can I do?

Asked on November 8, 2017 under Employment Labor Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Unless you had notice of or information about the correct rate *before* you were given the incorrect amount, they cannot take back what you have already worked for and earned. PTO is part of your compensation, just has your salary/wages: if you are told that you are working in exchange for (in part) earning a given amount of PTO and you do the work, they had to honor their committment and give you that PTO. The exception, as mentioned above, would be if you had been told what the correct accrual was (e.g. in an offer letter or employee handbook), in which case you were working for the correct amount (because that's what you knew you should earn and hence agreed to work for) and the incorrect accrual was an administrative error which may be corrected. But without prior knowledge of the correct rate, they are obligated to give you what you reasonably believed you were earning, the same as if they were paying you at a higher hourly wage than you theoretically were "supposed" to get, they cannot take back the higher pay unless you knew all along it was an error.
Unfortunately, if the employer does take away accrued PTO improperly, you have no recourse but to sue for the time; suing takes time and effort, would have costs (unless you act as your own attorney, or "pro se") and will obviously affect your relationship with your employer. This may not be a good or viable option.
They can, of course, reduce your PTO accrual in the future at will, to whatever level they want, unless you have a contract guarantying your accrual. They could even take away the accrual of PTO entirely unless you have a contract, such as until enough time passes that the total PTO you received matches what you would have received had you gotten the correct PTO from the beginning.

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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