Q&A #179 – How can an organization enforce the terms of its sabbatical policy?
Question: My nonprofit organization offers 3 months of paid sabbatical leave to employees who have reached 6 years of service with the organization. Our policy requires employees returning from sabbatical to provide documentation showing that they used the time to engage in approved professional development activities relevant to their job position. One employee who recently returned from sabbatical has not provided the required documentation and I suspect that the employee did not use the time as required. What are our options if the employee violated the policy? Can we force the employee to repay the compensation received while on sabbatical or deduct the amount from PTO?
Answer: As with many employment policies, enforcing the terms of a sabbatical policy can raise difficult issues and should always be approached with caution and applied uniformly. Potential disciplinary options for employees who don’t comply can include warnings, suspension, or termination. Repayment (i.e. “clawback”) of paid leave and/or forfeiture of other benefits could also be possible if clearly set forth in the organization’s policies. However, going forward you may wish to consider changes to make your sabbatical policy more flexible and easier to administer.
The reasons for imposing strict requirements regarding the use of sabbatical leave typically stem from a concern that employees will waste the time or use it in ways that do not tangibly improve their skills in their current role. While this concern is understandable, many organizations underestimate the challenges of enforcing these requirements.
Before proceeding with any disciplinary action, the usual recommended first step is to make sure the matter has been fully and carefully examined and documented in the organization’s records. Employees should be given a reasonable amount of time to show whether they complied with the policy and explain the circumstances from their perspective. For example, if the employee received informal approval of their sabbatical plans from a supervisor that would likely impact the organization’s assessment and approach.
For “at-will” employees who are not subject to specific protections in their contract, employee handbook, or applicable law, disciplinary action for violating a policy of the organization (such as warnings, suspension and/or termination) is always an option to consider. But these actions should be approached carefully because there is an inherent risk that employees may try to claim they were disciplined for discriminatory or other unlawful reasons. For example, if the organization has a history of loose or selective enforcement of its sabbatical policy for other employees, that could complicate an otherwise legally valid and justified termination.
In some cases, it may be permissible to require employees to repay the value of paid sabbatical leave that they used improperly, deduct this leave from their paid time off (PTO) balance, or provide that employees forfeit the right to use certain other non-mandatory benefits. However, these types of “clawback” remedies should never be used if they are not clearly and explicitly written into the employee handbook with a signed acknowledgement by the employee. Further, organizations should not claw back paid leave benefits without the advice of an attorney, since there may be legal restrictions on this remedy under applicable wage & hour laws, state laws protecting paid leave accruals, and/or state contract law doctrines that void “penalty” provisions to the extent they are deemed disproportionate or unreasonable. Extra caution should be used before attempting to deduct an amount from an employee’s paycheck, as this practice is strictly regulated and usually only allowed in very narrow circumstances.
Planning Tip – When drafting employee handbook language to set parameters for paid leave benefits (e.g., vacation, sabbatical, floating holidays, medical leave, etc.) one of the most important issues to address is whether accrued, unused leave is paid out to the employee upon termination or separation from employment. The laws vary as to whether forfeiture of accrued, unused leave is permitted, depending on which state’s laws apply and the type of leave at issue. Consequently, it is important to review the law and explicitly address this issue in detail in the employee handbook with regard to each and every type of paid leave benefit provided by the organization.
The complications discussed above illustrate some of the reasons many nonprofit organizations and other employers have moved away from requiring that sabbatical leave be used only for professional development or other activities directly related to the employee’s job position. Going forward, it may be worth considering revisions to your organization’s sabbatical policy to adopt a more flexible approach.
As discussed in this article by the Center for Nonprofit Advancement, sabbatical leave provides important opportunities for restoration, reflection, and personal transformation. Having strict requirements regarding the use of sabbatical time not only creates difficult oversight, enforcement, and compliance issues, this approach can also undermine the less tangible (but equally valuable) employee retention benefits of avoiding burnout and building a culture that prioritizes fulfillment and personal wellbeing.
