Q & A

From Indiana

Question: Can members of our department be required to pay vacation and comp time back months after being granted the time off? The time off was in error. The shift captain records all time off and told the employee in question to use the time or lose it. One month later he was told by the Chief he will lose a vacation day for the year 2008 due to the use of an extra vacation day in 2007. He is one of two employees in the last two months with the same problem.

Answer: If the time off was granted in error, and in the absence of any collective bargaining agreement, then the general rule is that the employer is entitled to recover the overpayments made to employees. The employer’s recoupment of the additional benefits has to comply with any state laws on the issue – sometimes a tricky issue, since some states don’t allow most unilateral deductions from an employee’s check – and any reduction in pay must not take the employee below the FLSA’s minimum wage.

From Vermont

Question: An employee makes etchings/markings on a piece of department equipment and is forced to replace it, though it did not affect the functionality of the device. The piece of equipment could also have been salvaged and resurfaced rather than replaced. Can an employer force this type of monetary punishment?

Answer: Most arbitrators would analyze the punishment under traditional just cause standards. They’d consider things like the employee’s work history, the warnings (if any) the employee received about the conduct, the degree of monetary harm caused to the employer, and the like. Most arbitrators would consider the cost of replacement as only one factor among many in determining whether the punishment was appropriate. And, if the employer had legitimate alternatives to replacing the piece of property, an arbitrator would likely look dimly at forcing the employee to pay the full cost of replacement.

From Florida

Question: My Department recently changed the leave policy. It used to be that if an officer was on extended leave, another officer could take the day off even if it incurs overtime. Due to a budget crunch they have limited it so that if it would incur overtime the officer now cannot take leave, even though it is easy to get someone to cover the shift on overtime. Is this legal?

Answer: In most states, a change in the number of individuals allowed off on leave would be a mandatory subject of bargaining. As such, the employer could not make such a change without first discharging its bargaining obligation with the labor organization. If it failed to bargain over the issue after receiving a demand to do so from the labor organization, the employer would be committing an unfair labor practice.

This article appears in the March 2008 issue