With the holidays fast approaching, many employees will be looking to extend their holidays with use of vacation time. While generally it is good policy to allow employees to use their vacation time as they wish, such usage can present some difficulties for the employer.  For instance, discretionary usage by employees can be especially problematic if the holidays also double as that employer’s busy season.

Let’s first discuss some of the basics. There is no federal law that governs vacation time or policy. West Virginia law has a few provisions that relate to vacation time. Generally, West Virginia law provides that the contract, employee handbook, or actual practice of the employer dictates how vacation time should be handled. For instance, if your company has a practice of granting vacation policy every time, even during busy season, with two weeks’ notice, then your best position legally is to grant the vacation. On the other hand, if your handbook provides that employees may be granted or denied vacation time at the employer’s discretion, you are likely protected. Whatever the policy, make sure you are enforcing it consistently; that way you can avoid any discrimination or unfair treatment claims from upset employees.

Many issues arise for companies that are particularly busy during the holiday season. On the one hand, employers want their employees to have ample time off to see their families during this time of year, but on the other hand, if the employer is busy, it needs employees to be present. Generally, an employer can require its employees to work overtime during a busy season. Under the Fair Labor Standards Act (“FLSA”), employers may require their employees to work over 40 hours per week so long as they are compensated at least time and one-half.

West Virginia has several laws that come into play here. For instance, it limits the amount of hours nurses can work consecutively. There are several other occupations with similar safety limitations. Also, depending on the type of employee, they might be excluded from the time and one-half overtime requirement altogether. For instance, if your outside sales employees are required to put in extra hours to meet an end-of-quarter benchmark, you do not need to compensate them with overtime pay because outside sales employees are exempt from this portion of the law. However, employers should be very careful. A misclassified employee entitled to overtime pay can recover large sums of back pay in a civil action. Because every scenario is unique, you should consult an attorney and make sure you understand the specific laws for the type of employees at your business to avoid any misclassification.

Michael Spooner will focus his practice in the area of labor and employment law.
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