TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Monday, December 23, 2013

Should You Work on Christmas?

XmasCorporate Counsel, To Work or Not to Work on Vacation?:

As 2013 draws to a close, many employees are using leftover vacation days that might not roll over into the new year. Vacation is intended to be a time to unwind and forget about the trials and tribulations of working life—however, some employers and employees might not see it that way. Some feel tempted to stay in work mode all the time—whether it’s by checking their email or finally making those calls they’ve been meaning to get to.

Working while on vacation certainly doesn’t sound like much fun, but is it illegal? Paul DeCamp, a shareholder at Jackson Lewis and former administrator for the U.S. Department of Labor’s Wage and Hour Division, told that some employees who do work tasks during vacation must be compensated, but the rules differ depending on status under the Fair Labor Standards Act (FLSA).

For salaried employees exempt from the FLSA, according to DeCamp, if the employee is still being paid for the week of their vacation, doing some work during that time is fine. However, if the employee is not being paid for the week—if they are on furlough, for example—there is a risk to letting them do work, as time they put in can trigger the entitlement to a full week’s salary.

For nonexempt employees with FLSA protections, the situation is a bit different. Since they are not salaried, the hours of work they do on a vacation day are compensable. If workers do some amount of work on a vacation day employers “still need to measure and pay for that work,” DeCamp said.

And in the unlikely scenario that the nonexempt employee exceeds 40 hours of work during vacation, he or she would be entitled to overtime pay.

Legal Education, Tax | Permalink