- Legal EditorHenry Dahut, J.D.
Henry Dahut, J.D.
Attorney - Legal Publisher - Educator
Henry Dahut is a licensed California trial attorney. Over the course of his 30-plus years practicing law, Henry has represented and counseled countless clients in legal trouble.
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This article summarizes some of the major issues involving wage and hour laws, sick leave, and vacation time. Most of the labor laws will depend on your own state’s labor laws, and other laws such as the Family and Medical Leave Act are federal laws.
Federal Laws Set Minimum Standards
Federal law provides the legal minimum threshold for employee rights and standards. The states are prohibited from offering employees less, though states are permitted and indeed, encouraged to exceed the federal rights and standards set by the federal government.
Paid and Unpaid Sick Leave
Some ill or injured employees are provided “sick time” by their employers to give them time away from work to recover.
Employers often put restrictions on using that sick time, such as limiting the total amount of time the employee may take off or requiring that the employee bring a doctor’s note to prove that the employee was sick.
No federal law requires your employer to offer you paid or unpaid time off for sick leave unless you are:
- Covered by the Family and Medical Leave Act (FMLA) or
- You have a covered disability, which might require your employer to accommodate your disability by giving you time off.
Proof of illness
If you have sick time available, your employer shouldn’t stop you from using a sick day if you are sick. However, your employer can request you bring a doctor’s note to prove you were ill.
Use it or lose it policies
Generally, your employer can take away sick days if you don’t use these days within a certain time. Your employer might also be allowed to tell you how many sick days you can save before losing them.
Taking a sick day may violate company policy
Because most employees fall under the status of at-will employees, they can probably be fired for taking a sick day if the employer does not have a sick day policy. However, your employer may not be able to legally fire you if your illness is due to either of the following:
- A disability permitted covered by the FMLA, or
- A condition that was covered by Worker’s Compensation
Taking time off because of a relative’s illness
If covered by the FMLA, you can take off work if your child, parent, or spouse becomes seriously ill. Make sure you tell your employer as soon as possible why you need to leave work.
If you are not covered by FMLA, your employer is not legally obligated to grant you time off from work if your child, parent, or spouse becomes ill.
Vacation Time
Many employees are provided time off to take a vacation. The employer usually decides the length and timing of an employee’s vacation time. However, no federal or state law currently mandates employers to offer their employees paid or unpaid vacation time.
This being the case, some employers believe generosity and goodwill can improve an employee’s wellness and job performance.
Companies That Offer Vacation Time
No federal law requires your employer to give you vacation time – paid or unpaid. However, if your employer does agree to provide vacation, there are some restrictions your employer can place on your vacation time.
Limiting vacation time
Generally, your employer can decide when you can take your vacation. For example, if you work for a department store, you might not be allowed to leave during a busy holiday season.
If your employer’s vacation policy says all vacation time must be approved in advance, the employee must honor that restriction.
Limits on accumulated vacation time
Your employer can probably put “reasonable” limits on how much vacation time has accumulated.
The “Use it or Lose it” employment policy
Some states have specific laws that say employers cannot have a “use it or lose it” vacation time policy. Those states think of vacation time like wages: once you earn the time, the employer can’t take it away from you.
Some employers put a “cap” on the amount of vacation time employees can accumulate so that there aren’t too many people trying to take long vacations at once.
Payment for unused vacation time
In some states, if you quit or get fired, you should be paid for vacation time you didn’t use. Call your state agency that deals with wage and hour problems to see if you are legally entitled to be paid for accumulated vacation time when you leave your job.
Receiving Overtime-Time Pay
How overtime pay is calculated
How you calculate overtime pay depends on whether you are paid by the hour, weekly, monthly, or annually.
What if I am paid by the hour?
If you are paid by the hour, your overtime rate is 1½ times your hourly rate.
What if I am paid by salary?
Calculating your overtime rate can be more difficult if you are paid by salary. First, figure out your “regular rate of pay.” You can do this by dividing your weekly salary by the number of hours you worked.
The number you get will equal your “regular rate of pay.” Accordingly, you will be paid 1½ times that “regular rate” for every hour you work over forty hours a week.
For example, if your weekly salary is $1,000 and you usually work 40 hours a week, your “regular rate of pay” is $25 per hour. 1½ times $25 is $37.50, so you should be paid an additional $37.50 for every hour you work over 40 hours.
What is a workweek?
A “workweek” is any seven days in a row set by your employer as the workweek.
Your employer can say that the workweek runs from Tuesday through the following Monday, or that the workweek runs from Friday through the following Thursday. But your employer probably can’t juggle the scheduled “workweek” to keep from paying you overtime.
Most workweeks go from Sunday through Saturday, just like regular weeks. If you work more than 40 hours between midnight on Sunday and 11:59 p.m. the following Saturday, you should be paid overtime for all the hours over 40 during that week.
Underpayment of Wages and What You Can Do
The Fair Labor Standards Act was enacted to protect employees’ interests from employers who try to pay employees wages that are either legally too low or too late.
Almost every employee has the right to be paid at least minimum wage.
As of 2023, according to the Labor Law Center, Washington state pays the highest minimum hourly wage in the nation, at $15.75/hr., closely followed by California, which pays a minimum hourly rate of $15.50.
Those states with the lowest minimum wage include Alabama and Georgia that pays $7.25/hr.
Many companies have raised their hourly rates due to financial pressures that the Covid Pandemic caused.
Other than for standard deductions for such things as taxes and health insurance, your employer is legally prohibited from taking money out of your paycheck if that would cause your pay to fall below the minimum wage level.
Some Employees Are Exempt from Receiving Overtime
Salaried employees
While most workers have the right to be paid overtime, some do not. These are called exempt employees. Typically, salaried employees with broad job responsibilities are usually exempt from receiving overtime pay.
These employees frequently are paid by salary rather than by the hour. The law provides tests to determine whether an employee is exempt from overtime pay.
Exemptions can vary depending on your jurisdiction. Even if you are exempt under one set of laws, you might be in a more worker-friendly jurisdiction, which provides you the right to be paid overtime. The following types of workers are usually exempt from receiving overtime pay:
Professionals exempt
Professional workers are usually exempt from laws requiring overtime pay. The reasoning advanced for this distinction is that highly trained employees typically have received a great deal of training and possess advanced degrees.
Professional employees also make important decisions without a lot of supervision. Workers who usually qualify as professionals include lawyers, doctors, dentists, registered nurses, accountants, architects, scientists, and teachers.
Administrators exempt
You will not be able to receive overtime pay if you are considered an administrator. Whether or not a worker qualifies as an administrator and therefore is exempt from overtime, pay usually turns on whether the administrator possesses primary operational responsibilities for running the business.
Usually, this would entail exercising discretion and independent judgment on the job. If you do not have such duties, chances are you would not be considered an administrator and might therefore be entitled to overtime pay.
Executive employees exempt
Workers that are considered executive employees are exempt from laws requiring overtime pay. Under the general legal test for an executive who is not, you will probably not be exempt if you make more than $350 per week.
Executive employees do not have to wear expensive suits or work for a big corporation. You have management responsibilities, and you are regularly managing the work of at least two other full-time employees.
Often, managing employees means you have the right to hire and fire employees. Managing can also mean planning how the work will be done at the company and being responsible for doing the work.
Finally, the most common type of exempt employee is the outside salesperson. If you travel to make sales, you will be considered exempt from earning overtime pay.
Consult With An Employment-Labor Lawyer
Should you have specific questions or require additional information about your legal rights and obligations, we strongly advise you to consult with a verified online Employment-Labor Lawyer about your issues as soon as possible.
