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Employment Law/Exempt Employee PTO


I am in Texas.  I am dealing with some PTO issues for exempt employees.  There is one employee in particular that in my opinion is blatantly circumventing the system.  They are taking a week of vacation and answering one or two emails a day or trying to clock in for two shifts in a day the week before in order to not take any PTO for the entire week.  The same employee who avoids using the PTO in this manner, on more than one occasion throughout the year, is then selling all of the unused PTO back at the end of the year.

I feel as if PTO should have to be used for this vacation time, but don't want to violate the rules.  What is the opinion of the experts?

Diable the employee's access during vacation. If they are off for one day or more for personal reasons then you are allowed to use vacation for that time. Write a vacation policy or revise your policy to say something like this: We want our employees to fully enjoy their vacation time. Because we feel it is important to give our employees a work free vacation we will not allow emails or work during scheduled vacation time.

The other solution to the problem is what some companies have been doing. Policy: PTO time scheduled off will be paid on the payroll before your time begins. You will receive your vacation time for the scheduled time off. Please schedule your time 30 days in advance in one or two week intervals. (Pay them the one week or the two weeks vacation due.  A lot of manufacturing places are paying this way.

Here is the summary of the Texas Law on PTO (Vacation) Pay:

No Texas or federal law requires private-sector employers to provide paid or unpaid leave of any kind, although some amount of unpaid leave may be necessary as a reasonable accommodation in the event of a disability, pregnancy, or other condition protected under a specific statute. In the area of family or medical leave, the only employers that are required to provide up to 12 weeks of unpaid job-protected leave under the federal Family and Medical Leave Act are those with 50 or more employees stationed within 75 miles of the employee who is to take such leave, and even then the employee has to meet the various eligibility conditions in order to be entitled to the leave. However, most employers do provide some kind of paid leave, in varying amounts that are up to a company to determine for itself. If such leave is promised in a written policy or agreement, the leave is an enforceable part of the wage agreement under the Texas Payday Law. The written policy or agreement will be enforced according to what it provides.

You will find more at the above website. Basically you are not required to give any time off. If you do whatever policy you have written must be followed as that is what the Texas Workforce will enforce. You can change your policy with adequate notice to the employees that would be at least 30 days notice.

We do not allow our employees to cash in PTO time. They must use it or lose it. We used to allow it but it got out of hand in the way you mentioned. The hourly used theirs and the salaried sold theirs. We did write into our profit share that a percentage can be rolled over into the PTO plan but only a percentage.

In Texas since vacation, PTO, Sick pay are not required you could have a use it or lose it policy as well. You use it up before your anniversary date or year end however it is earned or it is lost and you get new time for the next year.

You are welcome to a copy of my PTO policy if you would like, although we are pretty generous with PTO but you could adjust it to your purpose.


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Shirley McAllister, CPP, PHR


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).


30 years in Payroll and Human Resources

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