64 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com practice allow sufficient opportunity for empoyees to take time off, or work fewer hours in lieu of taking time off; and (4) be administered fairly so that it neither becomes a de facto “use it or lose it policy” nor results in inequities (e.g., where one employee works many hours, taking minimum time off, and another works fewer hours and takes more time off).309 A policy with these characteristics would not trigger Section 227.3 and require payment of unused vacation wages at termination. After McPherson, there remain many unknowns about the proper structuring of unlimited vacation plans and employers should proceed with caution. Also important is the prompt payment of accrued vacation at the start of a furlough or temporary layoff. The Ninth Circuit has now addressed the issue and has endorsed the DLSE Opinion Letter that states that a layoff or furlough with no specific return date within the normal pay period is a discharge within the meaning of § 201.310 309 Id. 310 Hartstein v. Hyatt Corporation, 82 F.4th 825 (9th Cir. 2023).
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