Can I get my vacation pay?

I resigned from my position. I received final commissions, but no accrued vacation pay. I asked verbally to the owner 3 times and then in writing. I got a pesponse that said that vacation had to be used or lost. I do not dispute this. I had 80 hours on my last anniversary date and used 32.I left in July, my AD was in Dec.
My pay stubs indicate 48 left. Do I have a solid case for small claims court? This company has no employee handbook.

1 answer  |  asked Nov 29, 2006 8:12 PM [EST]  |  applies to Ohio

Answers (1)

Neil Klingshirn
Vacation pay at termination depends on your employer's rules

An Ohio employer is not required by law to give its employees any vacation, holiday or other paid time off. Accordingly, when an employer provides paid vacation, it can establish the rules under which employees receive that benefit. The rules may be stated in a policy or handbook. If not, courts may consider pay documentation and the employer's past practice to see whether the employer pays unused vacation at the termination of employment.

In your case, your pay stub is good evidence that you had 48 hours of vacation at the time of your resignation. However, it does not answer whether you were entitled to the vacation pay when you resigned. If the employer's "use it or lose it" practice applies to resignations, you may not be entitled to it.

Since there is no employee handbook, I believe that the employer's practice with other employees will be the key. If the employer routinely paid other employees for accrued but unused vacation when they left, you should have enough evidence to file a small claims action.

The following is for legal researchers who want to dig further into this issue. It is a list of cases enforcing employer vacation policies cited by the court in Sexton v. Oak Ridge Treatment Ctr. Acquisition Corp., 2006 Ohio 3852, P13-P14 (Ohio Ct. App. 2006)

Ammons v. Akromold, Inc. (May 20, 1998), Summit App. No. 18641, 1998 Ohio App. LEXIS 2202; Winters-Jones v. Fifth Third Bank (May 27, 1999), Cuyahoga App. No. 75582, 1999 Ohio App. LEXIS 2410 (holding that former employee was not entitled to payment for vacation time accrued but not used at the time she left her employment where the company's policy manual clearly stated that vacation time must be used during the employee's employment or is lost); Bologa v. I.H.S., Inc. (Mar. 17, 1999), Summit App. No. 19218, 1999 Ohio App. LEXIS 1107 (determining employee was not entitled to unused vacation pay at termination where employer's vacation policy stated that no paid time off would be paid out at termination). See also, Van Barg v. Dixon Ticonderoga Co., 152 Ohio App.3d 668, 2003 Ohio 2531, 789 N.E.2d 727 (holding employer was entitled to implement "use it or lose it" vacation policy prospectively, but could not apply the policy retroactively to divest terminated employee's vacation time accrued before the policy went into effect); Spry v. Mullinax Ford (Nov. 13, 2000), Stark App. No. 2000CA00118, 2000 Ohio App. LEXIS 5265 (enforcing written company policy requiring employee's continued employment on anniversary date to be entitled to payment for accrued vacation time). Compare, Braucher v. Allied Truck Parts Co., Stark App. No. 2002CA00278, 2003 Ohio 1698 (holding employee was entitled to accrued vacation pay upon termination where employee handbook expressly provided that "Eligible employees will be paid for earned but unused vacation upon termination".

In addition Although employee handbooks and policy manuals are not in and of themselves contracts of employment, they may define the terms and conditions of an at-will employment relationship if the employer and employee manifest an intention to be bound by them. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104, 19 Ohio B. 261, 483 N.E.2d 150; Finsterwald-Maiden, supra; Sowards v. Norbar, Inc. (1992), 78 Ohio App.3d 545, 549, 605 N.E.2d 468; Winters-Jones, supra.

posted by Neil Klingshirn  |  Nov 30, 2006 11:14 AM [EST]

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