Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question: I just let an employee go for not meeting job expectations. She sent me a text message asking when I would be sending her payment for the vacation days she didn’t use. Do I have to pay her for those?

Answer: The response to that question is again (as I’ve noted in other columns) a very lawyerly “it depends.” In this case, the answer depends upon the state your company is located in, as well as what your vacation policy says. Don’t have a vacation policy? Then the response defaults to your state’s law.

Many states have little to no legal requirements when it comes to vacation pay – unless the state includes accrued vacation days in the definition of “wages” and also has a requirement as to when all wages must be paid to an employee whose employment has been terminated.

Many states require final payment to terminated employees to be made no later than the next regular pay date. Some states, however, like California and Massachusetts, require you to hand an employee their pay—the final pay check—in the termination meeting—and specify that “final pay” includes accrued but unused vacation days.

Other states, like New York, tell employers to follow their own policy with regard to the payout of vacation days to terminated employees. These states allow employers to have what are called “use it or lose it” policies: if the employee does not use his or her vacation days, they are forfeited and not paid out upon termination of employment. If, however, your vacation day policy does not specify that days are forfeited, and is silent on that issue, you may be required to pay them out. If you are in a state that permits “use it or lose it” policies, it is prudent to include language both forfeiting unused vacation days upon termination and indicating that unused days will not be paid out.

If employees believe that they are owed for unused vacation days, and your state’s laws or regulations require that vacation days be paid out, terminated employees can usually go to your state’s Department of Labor and file a wage payment claim against your company seeking the value of the unpaid vacation days. Companies can handle such wage claims in the DOL alone, without the assistance of an attorney—but government agencies usually will provide more assistance to the employee than they will to you.

If your state has no law requiring pay out of vacation days, but your policy clearly says they are paid out and then you do not pay them, the employee would need to bring a lawsuit against your company (probably in small claims court) seeking payment under the policy probably alleging a breach of contract (i.e. the company promised to pay out unused vacation days and broke its promise (violated the contract) with regard to this employee). How successful such a lawsuit would be depends on a number of factors, including the language in your vacation pay policy and whether the court will consider the policy to be an actual contract the court can enforce.

Thus, to answer your question you need to first look at your vacation pay policy. If you don’t have such a policy, look to your state’s wage laws. To find them, go to your state’s Department of Labor web site (or the website for the equivalent state agency that handles employee wage issues for your state; for example, in Oregon the agency is called BOLI – Bureau of Labor and Industries). Most such web sites have an “FAQ” (frequently asked questions) section specifically for employers and often you can find your answer there. You also probably can call that agency and ask the question without giving any identifying information about yourself or your company—but that is not always the case. For certainty in terms of what to do (and how to fix your policy if needed for the future), consult with a management-side employment lawyer familiar with the law in the state where your company is located.

*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.

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