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Friday, December 5, 2014

States With Pro-Employee Laws: No Use-It-Or-Lose-It Vacation

You've probably seen the commercial. A kid says, in response to the study that over 400 million vacation days go unused, "That's the stupidest thing I ever heard." Yep. Stupid. Odds are, if you don't take those vacation days, you lose them.

Employers that have policies saying vacation is paid out at the end of employment must comply with those policies. In most states, employers can refuse to pay out unused vacation at the end of employment by implementing a use-it-or-lose-it vacation policy. Many employees are rudely surprised when they find out the employer that wouldn't let them use their vacation days also doesn't have to pay them out. Most employers can also require employees to use their vacation by a certain date, usually the end of the year, or lose it. That means you'd better use those vacation days in the next few weeks if you're like most employees.

However, some states protect their citizens by barring use-it-or-lose-it vacation policies. Here are some states that look out for their voters:
Before I tell you which states, I want to make a plug for you to vote for this blog in the ABA Blawg 100. I'm honored to announce that Screw You Guys, I'm Going Home is listed as the only employee-side blog in the Labor and Employment category, and now the voting is going on for the top blog in each category. It takes only a minute to register and vote. I'd sure appreciate your help. Now, back to the post.
California: Under Cal. Labor Code §227.3, all accrued vacation must be paid when employment ends. California also prohibits policies that make employees take vacation by a certain date or lose it. In one California case, an illegal policy cost the employer millions.

Illinois: Under 820 ILCS 115/5; 56 Ill. Adm. Code 300.520, employers have to pay out accrued vacation pay at the end of employment unless a collective bargaining agreement with a union provides otherwise. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. 56 Ill. Adm. Code 300.520(e).

Indiana: While employers can have a use-it-or-lose-it policy in Indiana, employers have to pay out accrued vacation if their vacation policy is silent on the issue. See Indiana Heart Associates, P.C. v. Bahamonde, 714 N.E.2d 309 (Ind. App. 1999); Die &Mold, Inc. v. Western, 448 N.E.2d 44 (Ind. App. 1983).

Louisiana: Vacation pay is earned wages, so policies requiring the forfeiture of earned vacation pay are not enforceable. Beard v. Summit Institute, 707 So.2d 1233 (La. 1998). However, they may implement use-it-or-lose-it policies saying employees must use by a certain date or lose the vacation.

Maryland: Like Indiana and Louisiana, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.

Massachusetts:  Employers have to pay out accrued vacation pay at the end of employment. While they can have a policy saying employees have to use vacation time by a certain date or lose it, employers must permit employees a reasonable opportunity to take those vacation days before they're gone. MA Atty. Gen. Advisory 99/1.

Michigan: Similar to Indiana, Louisiana and Maryland, while employers can implement policies, if the policy is silent on the issue vacation must be paid out at the end of employment.

Montana: In Montana, an employer can't take away earned vacation pay or fail to pay it out for any reason. MT Dept. of Labor and Industry FAQ; See Langager v. Crazy Creek Products, Inc., 287 Mont. 445; 954 P.2d 1169 (Mt. Sup. Ct. 1998).

Nebraska: Nebraska law prohibits employers from failing to pay out earned vacation or from policies saying employees must use vacation by a certain date or lose it. See Neb. Rev. Stat. § 48-1229(4); Roseland v. Strategic Staff Management, Inc., 272 Neb. 434, 722 N.W.2d 499 (Neb. Sup. Ct. 2006); Neb. Dept. of Labor FAQ.

New York: If the policy is silent on the issue vacation must be paid out at the end of employment.

North Carolina: If the policy is silent on the issue, vacation must be paid out at the end of employment. N.C. Gen. Stat. § 95-25.12.

North Dakota: Employers can't require an employee to forfeit accrued or earned vacation leave upon separation from employment, regardless of the reason. ND Admin. Code § 46-02-07-02(12). However, they can implement policies saying vacation must be used by a certain date or be lost.

Ohio: While use-it-or-lose-it policies are allowed, vacation must be paid out at the end of employment if the policy is silent on the matter. See Fridrich v. Seuffert Construction Co., 2006 Ohio 1076 (OH App. 2006).

Oregon: Oregon is another state that allows such policies but requires employers to pay out vacation if the policy is silent on the issue.

Rhode Island:  Employers must pay employees who have completed at least one year of service for any vacation pay accrued in accordance with company policy or contract on the next regular payday for the employee when they leave. RI Stat. § 28-14-4(b).

West Virginia: If the policy is silent on the matter, vacation has to be paid out at the end of employment. See Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676 (WV Sup. Ct. 1999). Otherwise, employers are allowed to implement such policies.

Wyoming: In Wyoming, an employer cannot require an employee to forfeit accrued or earned vacation on leaving. WY Dept. of Employment FAQs.

Some vacation policies are an earned benefit under ERISA, so employers that have no use-it-or-lose-it policy and fail to pay out earned vacation may risk a lawsuit under ERISA.

If you want to know about your state's vacation laws, a great state-by-state summary is here. For more on employee benefits, read my article Top Nine Things You Need To Know About Your Employee Benefits.

8 comments:

  1. The company I worked for (in California) changed their vacation policy for exempt employees to a 'Freedom Policy' which stated that there would no longer be any accrual/recordkeeping of vacation, you were free to take time off as you needed it, as long as it was approved and did not affect your work load/output. I worked ten and half months under that policy and did not take any time off and was then laid off. I was compensated for the unused vacation time accrued in the year before the Freedom policy went into effect, but not compensated for any vacation time for the ten and a half months I worked and did not take any time off. Is that legal/fair? The previous vacation policy was a standard two weeks accrued as you worked. Thanks

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  2. It's so amazing to me that these are the kinds of issues the private sector deals with but i know of people in the public sector that retired with over $400,000 in unused accrued time.

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  3. can you explain what the policy for NYS means please:
    New York: If the policy is silent on the issue vacation must be paid out at the end of employment.

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  4. Hi, When I was hired a year ago my company that I work for was based out of West Virginia. I live and receive my paycheck in CA. In November our company moved offices to Miami Florida. I did not use any of my vacation. Do they have to pay me for it? Roll it over or do I lose it? Thanks for your help

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    1. I live in florida its a use it or lose it state

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  5. I won the fight. I live in CA and the company was based in VA when I started and signed the emp manual in VA. Laws protected me in both states, it was not legal to have a Use it or lose it policy. They forgot to send out new emp manuals with amendments for the move so it does not count. You have to fight for what you believe in. I am glad I did. I got all my vacation days rolled over to 2016.

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  6. I live Nevada where the local government is POS. Completely in pockets of corporations. In this state workers got few rights and employers can do as they please. Funny part is most of locals here buy the BS that regulations and laws will hurt the economy. Nevada is sorry state populated by gullible fools and run by corrupt and evil people.

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  7. I live in NC and my company has rollover vacation. Recently changes were made to certain positions and vacation is no longer set. You ask for a day off and manager approves or denies. Are they legally obligated to pay me the rollover vacation? What if I leave the company? I will loose time and not get paid for it based on their rules.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.