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I resigned from a job and gave notice, and now the company is saying new policy is to not pay accrued vacation.

New York, NY |

I spoke with the woman who functioned as HR and she was operating under the assumption that I would be paid remaining accrued vacation, just like I was. I've now spoken with my former boss who said that he changed company policy for 2013 at the beginning of the year that said resigning employees would no longer be paid that day. I was not made aware of the new policy, did he have an obligation to let me know? Do I have any case in small claims court? If he didn't let me know, am I still entitled to those days?

Attorney Answers 4


  1. I would say you need to review your employment contract. If it was part of your contract, unless they had you sign a waiver, it should be yours. Then again, the contract may have given them the right to change policies without notification. Speak to an employment attorney directly.


  2. I would grab a copy of any document or handbook that speaks to the company's 2013 policy on accrued vacation and take it to an experienced employment attorney or the New York State Department of Labor for a second opinion.

    This answer does not constitute legal advice and you should contact an attorney to confirm or research further any statements made in this answer. Any statements of fact or law I have made in this answer pertain solely to New York State and should not be relied upon in any way in any other jurisdiction. Additionally, we also encourage you to reach out to us via Twitter (https://twitter.com/#!/WhiteRoseMarks) or Facebook (http://www.facebook.com/WhiteRoseMarks) if you have follow up questions as we do not monitor questions after providing an initial answer.


  3. Depends. See the NYS Department of Labor's website:

    Q: When employees resign -- or are discharged -- from a job, must the employer pay them for any accrued, unused vacation time?

    A: Whether an employer must pay for unused time depends upon the terms of the vacation and/or resignation policy. New York courts have held that an agreement to give benefits or wage supplements, like vacation, can specify that employees lose accrued benefits under certain conditions. [See Glenville Gage Company, Inc. v. Industrial Board of Appeals of the State of New York, Department of Labor, 70 AD2d 283 (3d Dept 1979) affd, 52 NY2d 777 (1980).] To be valid, the employer must have told employees, in writing, of the conditions that nullify the benefit.

    If an employee has earned vacation time and there is no written forfeit policy, then the employer must pay the employee for the accrued vacation

    File a claim with the NYS Department of Labor

    Answers to questions posted on the AVVO website as well as content contained on The Sanders Firm, P.C., website is intended for informational purposes only. Nothing in such answers or the content contained on The Sanders Firm, P.C., website is to be considered as either creating an Attorney-Client relationship between the reader and The Sanders Firm, P.C., or as the rendering of legal advice for any specific matter. Readers are responsible for obtaining such legal advice in consultation with a licensed Attorney.


  4. I agree with the comments. It is not fair to fail to give you advance warning of this. You could have taken the vacation time if you had known. All I add is that vacation time does not normally vest like a pension benefit. There has to be a promise that you will be paid for that or in some cases when there is a state statute or regulation there must be a clear disclaimer that you will not be paid for that. So you should look for either a promise of payment of vacation or a clear disclaimer that you will not be paid vacation time after termination. Then look to see if the policy change made was pursuant to the procedure for such changes. Sometimes the handbook will set out how changes are made. If the change was made correctly, then look to see if it had to be published to employees. You should go to a lawyer that does this in your area.

    More facts need to be known so do not rely on comments here until consuting with an attorney that practices regularly in this area of law.

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