CACI No. 2753. Failure to Pay All Vested Vacation Time - Essential Factual Elements (Lab. Code, § 227.3)

Judicial Council of California Civil Jury Instructions (2023 edition)

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2753.Failure to Pay All Vested Vacation Time - Essential Factual
Elements (Lab. Code, § 227.3)
[Name of plaintiff] claims that [name of defendant] owes
[him/her/nonbinary pronoun] compensation for unpaid vacation time that
[name of plaintiff] earned but did not use before being terminated.
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] was [a/an] [employer/[specify other
covered entity]];
2. That [name of plaintiff] was an employee of [name of defendant];
3. That [name of defendant] did not pay [him/her/nonbinary pronoun]
for all earned and unused vacation time at [his/her/nonbinary
pronoun] final rate of pay in accordance with the [contract of
employment/employer policy]; and
4. The amount owed to [name of plaintiff] for earned and unused
vacation time.
New November 2021
Directions for Use
Element 1 may be omitted if there is no dispute regarding the defendant’s status as
an employer.
An employee’s proportionate right to a paid vacation vests as the labor is rendered.
(Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 784 [183 Cal.Rptr. 846, 647
P.2d 122].) If there is a dispute as to the amount of vested vacation time, the jury
should be instructed to determine a pro rata share of vested vacation time. “[A]n
employment contract or employer policy shall not provide for forfeiture of vested
vacation upon termination.” (Lab. Code, § 227.3.)
Sources and Authority
Payment of Vested Vacation Wages Upon Termination. Labor Code section
“Employer” Defined. Labor Code section 350(a).
“Employee” Defined. Labor Code section 350(b).
“The right to a paid vacation, when offered in an employers policy or contract
of employment, constitutes deferred wages for services rendered. Case law from
this state and others, as well as principles of equity and justice, compel the
conclusion that a proportionate right to a paid vacation ‘vests’ as the labor is
rendered. Once vested, the right is protected from forfeiture by section 227.3. On
termination of employment, therefore, the statute requires that an employee be
paid in wages for a pro rata share of his vacation pay.” (Suastez, supra, 31
Cal.3d at p. 784.)
“Under Labor Code section 227.3, an employee has the right to be paid for
unused vacation only after the ‘employee is terminated without having taken off
his vested vacation time.’ Thus, termination of employment is the event that
converts the employers obligation to allow an employee to take vacation from
work into the monetary obligation to pay that employee for unused vested
vacation time. Consequently, [the plaintiff’s] cause of action to enforce his
statutory right to be paid for vested vacation did not accrue until the date his
employment was terminated.” (Church v. Jamison (2006) 143 Cal.App.4th 1568,
1576-1577 [50 Cal.Rptr.3d 166], footnote omitted.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 461-463
1 Wilcox, California Employment Law, Ch. 4, Payment of Wages, § 4.10; Ch. 5,
Administrative and Judicial Remedies Under Wage and Hour Laws, § 5.40 (Matthew
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.16 (Matthew Bender)

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