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Employer policy requiring the employee charge his or her vacation days for illness if sick leave is exhausted upheld

Employer policy requiring the employee charge his or her vacation days for illness if sick leave is exhausted upheld
USDOL/OALJ Reporter, Decisions of the Administrative Review Board, ARB No. 08-082, ALJ No. 2008-STA-25

In Wood v Aggregate Industries, the U.S. Department of Labor?s Administrative Review Board ruled that the Administrative Law Judge properly granted summary decision against Michael Wood. Wood's complaint was grounded in the contention that Aggregate Industries violated the Surface Transportation Assistance Act [STAA] because Aggregate Industries's leave policy required him to use a vacation day on a day he was absent due to illness. Aggregate's policy required that the employee charge his or her personal or vacation days for absences due to an illness if the employee has exhausted his or her available sick leave credits.

The ALJ found that Wood failed to establish that he had been subjected to adverse employment action, and that without proof of that essential element of a whistleblower case, the other issues in the case were immaterial. The ALJ also found that use of a paid vacation day for an illness-related absence is not a tangible employment action that caused a significant change in Wood?s employment status or benefits.

Moreover, there was no allegation that Wood was otherwise disciplined for his absence or that points were assessed against him or that he received a verbal or written warning under Aggregate Industries 's discipline system. There was no allegation that Wood lost wages at the time of his absence or thereafter as a result of using a vacation day.

Finally, there was no evidence that Aggregate Industries applied its "Time Off Policy" or "Working Rules of Conduct and Performance" to Wood in a discriminatory manner that violated the STAA.

Full post as published by New York Public Personnel Law on February 08, 2010 (boomark / email).