Is an employer required to pay vacation pay if exceptions were made to past employees?

I provided a 3 week notice instead of a required 4 week notice at the time of termination. Company stated because I did not provide the adequate required notice, I was not eligible for vacation pay according to the handbook. After handling cases before where exceptions were made to the handbook, making it an inconsistent practice of the company, I was told that no exceptions would be made in my case. I saved all my vacation pay for 11 months in the hopes of using it next year for my wedding. I had excellent performance and was a quality employee to the company. Past employees were given exceptions when it came to holiday pay and others were even paid out their vacation time at the time of required termination. The exceptions made make me question if I had reason to pursue the argument of also getting paid out my vacation.

2 answers  |  asked Nov 22, 2011 6:23 PM [EST]  |  applies to New York

Answers (2)

Shaun Reid
I agree with Jeanne, and would only add that another reason why an employer should treat all employees the same is because they run the risk of appearing to unlawfully favor one group over a protected group. For instance, if you are a female and was able to show that they only made exceptions for males, they expose themselves to a potential gender claim under Title VII, NYS, and NYC law.

Shaun C. Reid, Esq.
REID KELLY, P.C.
www.ReidKellyPC.com

posted by Shaun Reid  |  Feb 1, 2012 09:34 AM [EST]
Jeanne M. Valentine
Vacation pay is governed by the employer's company policy. There is no law in NY requiring any employer to pay vacation pay due or earned when employment terminates; instead, the law states that employees must be paid vacation/holiday/personal/sick pay in accordance with company policy. However, I would have advised the employer to treat each person exactly the same in every situation because the employer risks the NYS Department of Labor finding that the policy is not "hard and fast," and so they do owe vacation pay that is in line with their "practice." I believe you have a good argument to be paid your vacation pay because the employer has made exceptions to its policy in the past, although your argument is not the proverbial slam dunk. You have nothing to lose to pursue it. Good luck.

Jeanne M. Valentine
www.hudsonvalleyemploymentlaw.com

posted by Jeanne M. Valentine  |  Nov 22, 2011 7:18 PM [EST]

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