Published on August 26th, 2014 by Alan L Sklover
Question: Hi, Alan. I have been employed with a company for almost 12 years. I have accrued more than 400 hours of paid time off, which included vacation and sick time. If I leave tomorrow, (or they fire me) I can only be paid for 240 hours of the more than 400 I’ve accrued.
I’m hardly ever sick and my job is so busy I cannot take more than a day or two of vacation at a time. I do make it a habit of taking a solid week in the summer and usually every Christmas holiday. But that hardly makes a dent in my accrued time off.
My question is this: Are there any protections for employees in this situation?
I am afraid that if I ask to take a good portion of my accrued PTO, my managers will view me as something less than a loyal employee. However, this is PTO I’ve earned – trust me on this! If I can’t use it without fear of retribution, what’s the point?
I’d appreciate any insight you might have on this.
Hanover, New Hampshire
Answer: Hi, Christy. It is a widely known fact that many employees – especially in the U.S. – are afraid to take off for vacation (and other paid time off, commonly called “PTO”) that they have earned. Coupled with the fear of losing your job for being viewed, as you describe it, as being “less than loyal,” and you have a recipe for loss of earned benefits, if not problems with your health. There are a few things I might suggest that might – or at least I hope will – lighten your burden.
1. First, give serious consideration to whether your fears are based in reality. You know, fears are fears, and they cannot be dismissed out of hand. I do not at all mean to trivialize your fears, or dismiss them. Rather, what I do mean to do is to ask that you examine whether your fears of retribution are based in reality. It is often the case that fears are not, and for this reason sometimes fears needlessly hold us back from enjoying our lives.
As for a few examples, have you ever heard of a colleague being accused of being “less than loyal” for taking accrued time off? Being denied a raise, bonus, promotion on that basis? Does everyone in your department avoid taking time off like you do, or do some of your colleagues seem to find a way to enjoy their paid time off? Have you ever been treated in any negative way due to your taking the week off in the summer, and the week off around Christmas time? Just curious: have you asked friends at work if they have the same fear? These are just a few of the ways you might perform a “reality check” about your fears of taking time off.
More than I have ever seen in my 30+ years assisting employees, it seems to me that employees are more fearful about their jobs, more fearful about possible retaliation on the job, and more fearful than ever of losing their jobs. Fears are sometimes based in reality, but sometimes they are not. Your first step ought to be to determine if “real data” exists to believe your fear of retribution is a real one.
2. I know of no “legal protections” for employees afraid to take off vacation or PTO time, but creative “navigation” of workplace problems almost always works better than “legal protections.” Many states have laws that speak to whether employees must get paid for accrued but unpaid vacation time when they leave their employees, but I have never heard of any law that protects people from “retribution” or “being viewed as disloyal” if they take advantage of paid vacation or PTO time. (Your state of Kansas, in particular, has no such legal protection. For more information about this, go to www.dol.ks.gov.)
I do believe, as I discuss below, that creative “navigation” is almost always your best route to fairness and success in work-related issues; not always successful, but usually more successful than relying on laws, rules or regulations.
3. Many people in your situation use the federal FMLA law to use their extra vacation and PTO days. If by chance you or a member of your family becomes ill, injured, requires an operation, begins to need some type of therapy, or even in need of serious rest, and a physician will certify the need for your taking a medical leave of absence to assist in the healing process, by invoking the Family Medical Leave Act (usually called “FMLA”) you can take what is usually unpaid time off – but make it paid time off –by using unused vacation and PTO time.
Such legally-protected leaves of absence can be up to 12 weeks each year, and can be one week per month (or even shorter intermittent intervals) if physician-certified as necessary and appropriate to full recovery. Such leaves are very much more palatable to others, and BY LAW cannot be retaliated against without very tough legal penalties.
One of the ways the United States Congress made the FMLA law quite strong is by incorporating a provision that provides that any person who interferes with the exercise of FMLA rights can be individually sued, even if they acted in their corporate capacity. Such personal accountability goes a long way to prevent retaliation.
Act Wisely! Consider using our Model Memo Requesting FMLA Information, Forms and Procedures from Human Resources. It shows you “What to Say and How to Say It”™ and makes a permanent record of your request. Just [click here.] Delivered Instantly By Email to Your Printer.
4. Consider raising your concern – in writing – directly with your Manager and/or Human Resources representative. Though it surely might sound “confrontational” to “confront” the issue with those in charge, and especially to those with authority “over” you, doing so in a non-confrontational, respectful, matter-of-fact, way – but always first in writing –might help you in at least three different ways:
(i) First, your Manager and/or Human Resources representative might have dealt with such concerns previously, and therefore might offer a solution that you have not thought of, such as taking a paid leave of absence to gain needed education or training, as time off for those reasons tend to be more “palatable” to others;
(ii) Second, your Manager and/or Human Resources representative might agree to an unofficial “bending” of the official time-off rules, such as a half-day each Friday in the summer, especially if either they seem to get something they want as part of the “bending,” or if they view doing so to be in their interests; and
(iii) Third, your Manager and Human Resources representative have access to higher authority in the organization, and so might be able to secure a formal exception to the rules for you, such as authorizing a “buy back” of your unused time off.
I fully appreciate that these may be the very same people you think might think less of you for taking your paid vacation and PTO time off, I really do. It’s just that people can sometimes be more “angelic” and less “devilish” than we sometimes imagine. In most cases, I believe there will be little, if any, downside risk in doing so.
You might want to watch our Video, “Job Security – Lower Your Odds of BeingLaid Off.” Just sit back, relax, watch and listen. One of our Sklover Videos On Demand. To see our Complete List. Just [click here].
5. Emailing your concerns about possible retaliation is unquestionably the number one way to prevent retaliation from taking place. Imagine the following: A boss is bullying an employee. The employee writes an email to the boss, with a copy to the bully’s boss and Human Resources, and says “You are bullying me. I am filing a complaint. Do not retaliate against me, because that would be a violation of our company’s policies.”
Do you think the boss will retaliate? Chances are that the bully would be less likely than ever to do so, as it would surely be noticed and punished. Though it may seem counter-intuitive, it does really work.
You may be saying to yourself, “Retribution works in a far more subtle fashion – and often in ways that cannot be proven.” I would agree, but that does not mean you can’t keep careful vigil, and keep your guard up – and your email ready – at the very first sign of retaliation.
6. Also, might you think of ways to both (a) take time off, but at the same time (b) demonstrate that you are an extremely “loyal” employee. As is often said, “Perception is more important than reality.” Using your considerable creativity, can you find ways to get others to cover some of your responsibilities yet make certain – perhaps by planning ahead, maintaining contact through email and texting, or even attending certain meetings over the internet –that you are seen as both “present” and “performing,” even if you are really fishing on the lake? The use of digital communications is making such “virtual presence” easier and easier every day.
In fact, though I often do my work outside of my office, because of the frequency of my communications my staff sometimes swear that either I am hiding somewhere in the supply room or I have a camera overhead. You could do the same.
When leaving employment – for any reason – ALWAYS ask to be paid for Accrued But Unused Vacation. Use our “Model Letter Requesting Payment for Accrued but Unused Vacation – with 12 Great Reasons.” It shows you “What to Say and How to Say It.”™ To get your copy, just [click here.] Delivered by Email – Instantly!
7. None of these suggestions can be considered guaranteed, but each might be the one thing that gets you what you want, need and deserve. There are innumerable ways to address fearful situations at work. You are only limited by your imagination and your faith in yourself. The truth is this: if you are viewed as a valuable employee – through showing up on time, hard work, a positive attitude, respect for others, and a loyalty to the organization – then your managers will not consider retaliating against you for taking the time you have earned.
Christy, I hope one or more of these suggestions helps you. Your contributing to our blog has helped me share my own thoughts, with the hope it helps others. That reminds me of the saying “God gave us two hands – one to give and one to receive.”
P.S.: Want to learn more about workplace negotiating? Consider viewing our Sklover On Demand Video entitled “Can I Really Negotiate with My Boss?” Just sit back, relax, watch and listen. To do so, just [click here.]
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