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Employment Law/Employee handbook

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Question
QUESTION: Hello,

My employee hand book says that reviews and raises will start after 90 day probation period, this is not done, you wait a year. The handbook also says that Full Time employee's will receive paid time off. They however only offer it to a Maintenance position and a couple others that they say are "grandfathered in". Is this legal for them not to follow what they have in the handbook?

Thank you,

Cari

ANSWER: It sounds like the company needs to revise and update the handbook. Although the handbook is written as a guide to the employee the laws of the state of Tennessee still take precedence over the handbook.

The Department of Labor does not regulate reviews and raises and there are no laws that require either one.

The paid time off if it says full time employees receive it and you are a full time employee and are not receiving it and others are than they may be in violation. Although vacation is not required to be given by law, they do require them to follow their own rules. If their rules say it should be given than it should be given.

http://www.tn.gov/labor-wfd/faq_laws.shtml
The State of Tennessee does not have a law that regulates fringe benefits. Company policy would be the determining factor. These and similar matters are also determined by an agreement between the employees and the employer, or their authorized representatives. Title 50-2-103 (3)

In Tennessee, employers are not required to provide employees with vacation benefits, either paid or unpaid. TN Code § 50-2-103(3). If an employer chooses to provide such benefits, it must comply with the terms of its established policy or employment contract. TN Code § 50-2-103(3), TN Atty Gen. Opinion No. 06-169.

If you are promised paid time off in the handbook, keep a copy of the handbook off site with that information and contact your local Department of labor. You might check your handbook and make sure there is not a clause that says we reserve the right to make changes at any time. If there is they have the right to change it. They do need to update the handbook so it is correct if this is what they have done. It is unfair for you to read a handbook and expect Paid time off and not get paid time off. Explain this to the department of labor.

Shirley


---------- FOLLOW-UP ----------

QUESTION: Hello Ms. McAllister,

Thank you for your response. However, I live in Wisconsin not Tennessee.
Is there any input you could provide for the state of Wisconsin?

Thanks,

Cari

Answer
This says that in Wisconsin the employer must comply with the terms of it's established policy or employment contract. I would say a handbook would be considered an established policy.


Vacation Leave

In Wisconsin, employers are not required to provide employees with vacation benefits, either paid or unpaid. If an employer chooses to provide such benefits, it must comply with the terms of its established policy or employment contract. Wisc. Stat. 109.01(3); WI Labor Standards Bureau: Labor Standards Laws.

An employer may also lawfully establish a policy or enter into a contract disqualifying employees from payment of accrued vacation upon separation from employment if they fail to comply with specific requirements, such as giving two weeks notice or being employed as of a specific date of the year. See Tasker v. Chieftain Wildrice Company, 263 Wis.2d 432, 662 N.W.2d 679 (Ct. App. 2003).

An employer is required to pay accrued vacation to an employee upon separation from employment if its policy or contract requires it. See WI Labor Standards Bureau: Labor Standards Laws.

An employer may cap the amount of vacation leave an employee may accrue over time. See 161 Wis.2d 935, 469 N.W.2d 249 (Ct. App. 1991).

An employer may implement a “use-it-or-lose-it” policy requiring employees to use their leave by a set date or lose it, so long as the employee has agreed to the policy in writing. See Sinclair v. Hillhaven Corp., 161 Wis.2d 935, 469 N.W.2d 249 (Ct. App. 1991).

Neither Wisconsin’s Legislature nor its courts have given any significant guidance regarding whether an employer may establish a policy or enter into a contract denying employees payment for accrued vacation leave upon separation from employment regardless of the reason. However, based on the contractual emphasis Wisconsin authorities place on vacation policies, such forfeiture provision are likely lawful, so long as an employee was given sufficient opportunity to use their vacation leave while employed.

Wisconsin authorities are also silent regarding whether an employer may deny payment for accrued vacation to an employee upon separation from employment if its policy or contract is silent on the matter. Due to such benefits qualifying as wages under Wisconsin’s wage payment laws, an employer would likely be required to pay vacation leave to an employee upon separation from employment if the policy did not contain some sort of forfeiture provision. Wisc. Stat. 109.01(3).


Shirley

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Shirley McAllister, CPP, PHR

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I can answer questions about payroll laws and payroll tax laws and Human Resource laws and agencies. I can answer federal payroll and human resource law questions and most states; I do not have a knowledge of the local taxes for cities and counties within the state. If and when I can I will try and send you the website where you can reference the answer and where you can obtain more information as well as a contact number if needed for that particular agency. Some agencies I have worked with are IRS, Department of Labor (federal and state), Revenue Canada (and provincial governments), Inland Revenue, OSHA (0ccupational Safety and Health Administration); Social Security Administration and National Child Support as well as other agencies in Payroll and Human Resources. Some Laws I am particularly familiar with are FLSA (Fair Labor Standards Act), ADA (Americans With Disabilities Act), FMLA (Family Medical Leave Act) COBRA (Consolidated Omnibus Reconciliation Act ) , QDRO's, QMCSO's, and other support orders and garnishments, USERRA (Uniformed Services Employment and Remployment Rights Act,PPA Act (Pension Protection Act of 2006, As well as most other employment type acts. I am also well versed in the Title V Civil Rights Act and the HIPAA (Health Insurance Portability and Accountability Act).

Experience

30 years in Payroll and Human Resources

Organizations
SHRM (Society of Human Resources) APA (American Payroll Association) DOLEA (Department of Labor Employers Association) CPA (Canadian Payroll Association) NAPW (National Association of Professional Women) The Mentoring Network

Education/Credentials
PHR Certification in Human Resources CPP Certification in Payroll in U.S. Payroll Administrator and Payroll Supervisor certification in Canada

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