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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 4 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.
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