Legal Toolbox #104: Vacation & Military Service


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Question: We have an employee who is in the army reserve. We fully support our armed forces, but want to be able to operate our business properly in his absence and on his return.

Our company vacation policy is one week vacation for employees who have been with the company for one year and two weeks’ vacation after 5 years of service. The employee mentioned above just hit his five year mark with the company. The company has set a precedent for allowing employees to “sell” vacation days back to the company if they do not use them.

The wife of the above-mentioned employee just called to ask for pay for both the 2 weeks of vacation and holidays – both of which were not used by the employee as he is on active duty. Are we required to pay these requested amounts?

Answer: Reservists enjoy a wide array of benefits—the basic principle is that they must be treated at least as favorably as others on leave. In this case, since the company has a practice of paying employees for unused vacation, then the reservist should be paid as well. But unless the company regularly pays those on other types of leave for holidays, the reservist need not be paid for the holidays he has missed.

DISCLAIMER

This response is intended for general informational purposes only and should not be construed as legal advice or a legal opinion, nor is this column a substitute for formal legal assistance. For help with particular legal needs, members are invited to consult with Brooke Duncan III of Adams and Reese LLP. Mr. Duncan can be reached at
504-585-0220 or by email at brooke.duncan@arlaw.com.

MORE ON THIS FROM MR. DUNCAN:

Here’s another scenario to illustrate how you should handle this type of situation:

We have another reservist employee who was called to duty for approximately 2 years. He then took several weeks off before returning to work. While gone, he reached 10 years with the Company. He has asked for pay for vacation time for the years he was gone. Is the Company required to pay this amount?

Whether the employee is entitled to pay for vacation time he missed while on duty depends on whether the company allows employees to accrue unused vacation time and if so, how much time can be accrued, and also whether the company normally pays employees for unused vacation time. If the employer has a “use it or lose it” policy or practice which applies to employees on other kinds of leave, then this employee is not entitled to be paid for unused vacation. Again, the principle is that employees on leave for military duty must receive the most favorable treatment accorded to other, similarly situated employees.

Brooke Duncan
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Posted In: Legal

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