A friend of mine is in the military reserve (US), and working a civilian job. He's going to be deployed about 8 months into the fiscal year, and his employer knows this.

He would typically save some vacation time for holidays, vacation, potential sick days, etc. during the final 4 months. However, he will have no use for his paid time off when deployed. Therefore, he wants to use that vacation time to be with his family and enjoy the summer.

However, he has to ask for days off, and his employer doesn't want to grant them because more have been used recently than in an ordinary year. The employer wants him to not use a third of his time off, which will simply be lost if he doesn't use it.

Is it legal, ethical, and/or smart to use the whole year's vacation during a partial year? What if he was retiring or resigning instead? What recourse does he have if management won't grant any time off requests?

closed as off-topic by user8365, David K, mcknz, Joel Etherton, gnat Aug 28 '15 at 22:19

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  • 3
    Is your friend still (technically) going to be employed at the same job while deployed? Here, it is common that e.g. if you can take 30 days off in a given year, but only work 8 months in a given a year (for example by starting in may or quitting at the end of august), you would only get 20 days off. – anderas Aug 28 '15 at 20:04
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    This probably falls under a legal question or rules about a particular company. If you take more vacation than allowed, you could have wages taken. – user8365 Aug 28 '15 at 20:14
  • Are these vacations days already accrued or are they ones in the future that he actually hasn't received yet? It's pretty common that people only accrue days during time worked. If he hasn't actually received those days yet, then he doesn't actually have them to use. – NotMe Aug 28 '15 at 20:46
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    I suggest I suggest your friend read up about USERRA. According to that document, there is a customer service center and ombudsman system that should be able to give good information about this issue. – Patricia Shanahan Aug 28 '15 at 20:53
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    Are they truly given on Jan 1, or are they technically accrued but allowed to be spent in advance of accrual (like my current employer)? – Joe Aug 28 '15 at 20:59

Per the USERRA, the employer is not required to allow the employee to accrue vacation time during deployment. As such, if the employee accrues vacation time in the most common method - earning (for example) 1/2 day per paycheck, or some other similar method, the employer is not required to accrue those final 4 months' vacation time.

For most companies I've worked at, allowing you to spend vacation not accrued is at the discretion of the employer; at my current position, for example, they allow spending into the negative so long as you will accrue to zero by the end of the calendar/fiscal year. (We have full carryover, so this specificity is more needed than for use-it-or-lose-it employers.) As such, if the employer is aware that the employee will not accrue 1/3 of the days (say, 18 days, will not accrue 6 of them), it is reasonable for that employer to ask the employee not to take the vacation time. So I would say, most likely the employer is in the right, legally speaking, if the position is similar to most I've been in.

Now, this should be a consistently applied policy that affects all employees equally; the employer should have a clear policy as to when it is permitted to take time off in excess of accrual. Also, if the employer has a general one-time accrual, as one of my previous employers did - you immediately gain all vacation time on Jan 1, and can use it at any time - the employer should have a specific policy stating when this does not apply. If they don't have such a policy, and do have an instant-accrual policy, the employee may be able to make a reasonable argument that they are being discriminated against. The employee would want to talk to a labor lawyer before making any accusations of this, of course, and carefully read their employee handbooks. Also, if the employee is a union employee, speak first to the union representative, who may have additional information as far as what has been collectively bargained.

Finally, most companies have a policy that vacation can be denied for any reason; it's entirely possible they could use this to deny the vacation even if it is fully accrued on Jan 1, in a legal manner. Again, talk to an employment lawyer. Also, as Patricia noted in comments, talk to the folks in the Reserves; they may be able to help him/her out with information as to what is common practice, and what is legal/illegal in his/her particular case (although, much of it is likely dependent on company policy).

The ethical side of things, of course, is complicated, and not something really answerable here. What the company is doing is not terribly nice, but on the other hand the employee will be missing four months. I personally wouldn't fault the employee for taking the time, if he/she were able to do so without letting the employer know about the deployment, if the accrual is full on Jan 1.

This aside, the employer is required, per USERRA, to keep the reservist's vacation accrual rate the same; no seniority can be lost as a result of the deployment.

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