Does summer employee earn paid vacation

Dear Alex:

I own a small retail store and hired a seasonal employee for the summer. The employee has worked for my business for one month as a full-time hourly employee, but now she has requested a week off for vacation.

My longtime employees receive two weeks of paid vacation each year, but I had not intended for my seasonal employee to receive any vacation time.

My business does not have a written vacation policy, so do I have to pay this new employee for her week of vacation?

The lack of a written vacation policy is not unusual for small businesses, but in situations like this, can cause confusion as to whether the standard practices in your business apply to all employees, or just some.

Preventing this sort of confusion is one of the primary purposes of maintaining written employment policies.

Although it may have been your intent for seasonal employees to receive different benefits than their permanent counterparts, without having established clear and written policies in advance it will be problematic if you now try to enforce policies that call for differential treatment.

There is an ambiguity as to whether your seasonal employee is entitled to accrue vacation time just like the permanent employees.

If the issue were brought before the California Division of Labor Standards Enforcement (DLSE), the ambiguity would almost certainly be interpreted in favor of the employee.

Therefore, assume that your seasonal employee and all employees will benefit equally from any vacation policies you offer.

Do not assume, however, that you must pay your month-old employee for a full week of vacation.

The state of California does not require that employers provide employees with vacation time. But if vacation time is provided, it is classified as a form of wages that are earned.

As wages, vacation time accrues proportionately with the hours of paid work performed. In most businesses, two weeks of vacation per year means 10 work days of paid time off.

Those 10 days are earned evenly over the course of the year, and are not granted all at once.

To determine how much vacation accrues every week requires a little bit of math. A typical full-time employee works 40 hours per week, so two weeks of vacation would be 80 hours of vacation.

Eighty hours earned evenly over the 52 weeks in a year results in 1.538 hours of vacation earned every week.

If your employee has worked for four weeks, then she has earned 1.538 hours of paid time off in each of those weeks.

After four weeks, your employee will have earned a total amount of paid time off of approximately 6.2 hours. The remaining 33.8 hours of time off that your employee has requested can be unpaid.

After this issue is resolved, it would be well advised for your business to adopt written employment policies to prevent ambiguities such as this in the future.

Alex Myers is a business attorney with Myers & Associates in Napa. Reach him at alex@myers-associates.com or 707-257-1185. The information provided in this column is not intended as legal advice, nor does it create an attorney-client relationship. The information is not a comprehensive analysis of the law — if you need legal advice, contact an attorney.

This column originally ran in the Napa Valley Register on June 7th, 2016. You can read it on the Register's website here: "Does summer employee earn paid vacation"