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  1. #1

    Default Can an Employer Renege on an Offer to Pay Unearned Vacation Pay

    My question involves labor and employment law for the state of: MA

    We had an employee that was going through a personal crisis. She stopped coming into work. We told her we would have to replace her and she immediately started demanding all the things the company OWED her. The owner thought the employee had vacation time coming to her and made the mistake of telling her she'd get it along with her final check. (The girl still has 3 months before the vacation time accrues which is on her hire anniversary date). The owner just felt bad for the girl and her kids and didn't want to "fight" over the check believing it was owed to her. In the meantime, the girl has become nasty, threatening legal action and demanding payment of the vacation as it OWED to her by law which it is not owed since she's quitting three months before the accrual date.

    The offer to pay her the UNEARNED vacation time was in error as well as the owner doing it in "goodwill." Since the girl has become so demanding of her "owed" money, can the owner change her mind and not pay her any more than what she is owed for wages and time worked or because the owner initially offered the money in goodwill, is she now bound to pay her even though things have taken a turn and are now hostile?

    Thank you in advance!

  2. #2
    Join Date
    Jun 2006
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    Massachusetts
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    Default Re: Can I Renege Offer to Pay Unearned Vacation Pay

    Just as an FYI, MA law requires that any earned but unused vacation be paid out at termination unconditionally.

    I am going to assume that there is a written policy on how vacation is earned/accrued. Please post that policy word for word here.

    If there is no written policy, I think your owner is up the creek.

  3. #3

    Default Re: Can I Renege Offer to Pay Unearned Vacation Pay

    Thanks for your reply. The vacation policy is below.

    The owner never told her she couldn't come back - the girl just stopped coming into work. She kept calling the owner yelling at her about her pay. The owner figured she would be coming back after things "calmed down" in her personal life.

    We know that she is not owed the money as she clearly hasn't earned it until October. We want to know if the owner can offer to pay her just because she is trying to be nice but then change her mind when the girl became "psycho"

    The vacation policy is below:

    "Vacation
    Only active, full-time employees are eligible for paid vacation, and all vacation must be earned before being taken. You may not substitute pay for unused vacation unless you have your supervisor's written approval. Should a Company holiday occur during your vacation, you may add an additional day, either at the beginning or end of the vacation period, with your supervisor's approval.

    Vacation does not accrue between employment anniversary dates and may not be taken until it is earned. Vacation time must be used in the anniversary year after which it is earned and may not be carried over past the employee’s next anniversary date. For example, an employee with two weeks’ vacation as of his or her third anniversary date must use the two weeks prior to his or her fourth anniversary date. If an employee fails to take his or her earned vacation time before the employee’s anniversary date in violation of this policy, the employee will not earn any further vacation until that unused vacation has been taken.

    XXX Company reserves the right not to approve a vacation request if it will interfere with Company operations or adversely affect coverage of job and staff requirements. Whenever possible, employees' requests for vacation will be accommodated, but where scheduling conflicts arise, seniority will prevail."

  4. #4
    Join Date
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    Massachusetts
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    Default Re: Can I Renege Offer to Pay Unearned Vacation Pay

    What was her hire date? Was this policy distributed or otherwise made available to her? Do you, perchance, have her signature on a handbook? (That last would be nice but is not necessarily a dealbreaker.)

  5. #5

    Default Re: Can I Renege Offer to Pay Unearned Vacation Pay

    Her hire date was either the 13th or 14th - can't remember exactly right now. We don't have her signature. At the time she was hired, we simply gave the employees the handbook in their new hire packet. We have since changed procedure to include signature along with their payroll forms, etc. She is already claiming she never got anything from us...

  6. #6
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    Massachusetts
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    Default Re: Can I Renege Offer to Pay Unearned Vacation Pay

    13th or 14th of what month, what year? You know all these things but I have no information that is not in your post, and it is relevant. I don't want to give you an answer based on a guess.

    How much time are we talking about?

  7. #7

    Default Re: Can I Renege Offer to Pay Unearned Vacation Pay

    She started on the 13th or 14th of October 2013. She earned one week's vacation last year (2014.) She took it and was paid. She was due to accrue another paid week this October but this all happened in July.

  8. #8
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    Massachusetts
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    Default Re: Can I Renege Offer to Pay Unearned Vacation Pay

    Okay, here is my opinion. This opinion is based on having had many, many talks with the MA AG's office on the subject of vacation accruals and payouts at termination.

    If this goes to a fight with the AG's office, ultimately you would probably win. But for the amount of money we're talking about, given that he did tell her she'd receive it, it would probably be the better part of wisdom just to give it to her.

    And then change your vacation policy so that everyone doesn't earn their entire year's vacation at once on their anniversary date. That's an incredibly foolish policy to have in a state that requires unconditional payout of earned but unused vacation.

  9. #9
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    Jun 2015
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    Default Re: Can I Renege Offer to Pay Unearned Vacation Pay

    I sense a problem in this context...IF the owner made an offer of a vacation payout that was more liberal than the written policy...AND we liberally take her demand for that very payout as acctance of his offer ...you might be dealing with offer and acceptance of the more liberal package...

    it's too late to take an offer off the table if the other side has accepted it.

  10. #10
    Join Date
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    Massachusetts
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    Default Re: Can I Renege Offer to Pay Unearned Vacation Pay

    I don't necessarily disagree in this case, Drew. The employer is within his rights to withhold it based on the policy, but MA really, really wants everyone to get their unused vacation, and while I'm not as sure as you are that there is a contract for the more liberal payout, I frankly don't think it's worth standing their ground. While IMO the owner would *probably* win if the employee filed a claim, I can see it going the employee's way. MA is probably the most employee-friendly state going when it comes to payout of unused vacation, and I'm not even excepting California.

    IMO,, the employer should just pay it out and be more careful about what he says next time. I also think the policy needs revamping big time.

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