Ask a Lawyer
Can My Employer Tell Me When to Take Vacation?
I work for a small company that requires me to take two weeks of vacation during the Christmas holidays when business is slow. I also have another two weeks’ vacation that I can use throughout the year. Is it legal for my employer to require me to take vacation at set times?
Yes. Vacation is a matter of contract between the employer and the employee, not mandated by law. Thus, the employer has a great deal of discretion in determining how much, if any, vacation will be permitted and when it will be taken.
It is not uncommon for employers to close in late December and require employees to use vacation time during this period. The California Labor Commissioner takes the position that exempt employees (those legally exempt from overtime requirements) should be given at least 90 days’ notice of mandatory vacation. Also, exempt employees may only be required to take vacation in full-week increments. Of course, exempt employees may voluntarily take vacation for shorter periods with employer approval.
The employer may require a certain amount of advance notice prior to an employee’s taking time off for vacation and may refuse to grant a vacation request based on business needs.
Some employers solicit vacation requests at the beginning of each year. In the case of multiple requests for vacation that exceed the employer’s ability to grant time off, the employer may use any nondiscriminatory method to determine whose vacation request gets priority. Often, seniority is used as a tiebreaker.
California law considers vacation a form of wages, so vacation time accrues each day you work. However, and employer may require new employees to be on the payroll for a set period of time (such as six months) before using any vacation time, even though it accrues during the waiting period. Since vacation is considered wages, all accrued but unused vacation must be paid at the conclusion of the employment relationship (e.g., if the employee is laid off or terminated).
Your vacation policy is generous in that you have four weeks in total — more than most Americans. Count your blessings.
Amy Semmel is a partner with the firm Kelley • Semmel, where her practice focuses on employment law. The information discussed here is a general explanation of the law, and is not intended to serve as legal advice. Readers requiring legal advice regarding a specific situation should consult an employment attorney.