Question:

I need to work a half-day, one day a week to attend the meetings of a civic group that I am involved in. The meetings are not work related. I am a managerial employee and my employer said that I could take the time off as long as I use accrued vacation. I do not want to do that because then I will not have enough time for a long vacation that I want to take at the end of the year. Can my employer require me to use paid vacation to cover this time off? If I refuse to use my accrued vacation, can my employer deny me the time off?

Answer:

Until very recently the answer to your question would have been that your employer did not have to permit you to take the time off to attend those meetings, but could not have required you to use paid vacation. Two recent developments in the law have changed that analysis.

The first development is that on May 31, 2005, Labor Commissioner Donna Dell issued a memo removing a Labor Commissioner opinion letter from all copies of the Department of Labor Standards Enforcement Policies and Interpretations Manual. Labor Commissioner opinion letters are issued by the Labor Commissioner to private parties to provide guidance with respect to wage and hour issues. The opinion letter that was withdrawn stated that an employer could not require an exempt employee to use accrued vacation or paid time off (PTO) to cover partial day absences without jeopardizing the exempt status of the employee.

The second and more significant development is the case of Conley v. Pacific Gas & Electric. The Conley case concerns a class action against PG&E by a group of its exempt employees. These employees claimed that they were improperly treated as exempt from overtime because of PG& E’s policy of charging its exempt employees’ vacation leave banks for partial day absences effectively converted them to non-exempt employees and entitled them to overtime. The Court of Appeal in Conley held that PG&E’s policy did not render this group of employees non-exempt. In so holding, the court indicated that “We find nothing in California law that precludes employers from following the federal rule that permits them to require the use of vacation leave for partial day absences without causing otherwise exempt employees to become non-exempt under the salary basis test.”

It is too soon to tell whether the Labor Commissioner will provide further guidance on this issue or if the Conley decision will be appealed. However, based on the current state of the law, your employer is permitted to deduct from your accrued vacation balance when you take a half-day off for personal reasons. Your employer may also deny your request to work a half days under these circumstances.
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