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Friday, April 11, 2008

Laid Off with No PTO

My husband was fired March 25 without notice. They were "restructuring". My husband was due to start his vacation the day after - on March 26. Nothing like trying to figure out if you qualify for food stamps to get you in that vacation mode!!

My question is - He had 200 hrs. of PTO and now they say "It is not our policy to pay PTO". Is there any recourse to get that PTO??!!

If you live in California, my understanding is yes, they have to give it to you. If you live elsewhere--well, no. (Unless there is another state like CA, feel free to chime in if you know about one.)

Here's the thing about working in the good ol' US of A. Vacation and paid time off programs are not mandatory and except in a few circumstances, you are an "at will" employee, which means you can be terminated at any time. Severance is only mandated by law in a few cases. (Like, for instance, if a site is shut down without at least 60 days notice.)

So, basically, no. Decisions to pay out unused vacation is up to company policy. Depending on how the original offer letter was written, you may be able to raise a ruckus about it, but I doubt you'd get anywhere.

Job losses stink, but truly they are not uncommon and most people recover rapidly. One of the things that I always find fascinating is when we train managers on how to notify someone that his position is being eliminated. I always ask if they've done this before. More often than not, the manager will say, "well, I've been on the other side of the desk before."

I realize this isn't helpful. But, know you are not alone.

Do make a phone call and ask for the written policy, though. If such a thing doesn't exist, it might freak them out enough to pay you. Not likely, but worth a shot.

Just remember--be nice. Do not burn any bridges. And make sure your husband (the affected person) is the one to call in. I hate it when spouses call for anything other than, "my husband/wife is in the hospital. How do I initiate a leave of absence for him/her?" My first thought--especially when it is the spouse of a terminated employee calling--is "this is why we fired your spouse in the first place. He obviously couldn't take care of himself." Yes, yes, I know I'm making all sorts of assumptions. Just a little piece of info from the mind of HR.


Anonymous said...

I am afraid you are incorrect with regards to the statement "If you live in California, my understanding is yes, they have to give it to you. If you live elsewhere--well, no. (Unless there is another state like CA, feel free to chime in if you know about one.)"

Yes, California requires that terminated employees be paid for all accrued and unused PTO, including "personal" and "sick" time. However, most states DO require that employers pay out time that has been "earned" rather than simply granted. For example - a set number of sick days may be given each year - and can be used in total beginning on the first day of the year. Vacation time, though, is generally earned - for each pay period, a certain number of vacation hours have been earned, and is calculated as part of an employees wages (the number of accrued vacation hours would be on the paystub).

In the questioner's particular situation, if her husband accrued a certain number of vacation time each pay period, then this is an earned benefit and cannot be withheld, particularly if the company had a use it or lose it policy. I suspect that the husband's company is pulling a fast one - and it would pay to get a copy of the current employee manual to see how termination payments are handled.

This is the law in New York, Minnesota, Florida and quite a few other states.

HR Godess said...

There are 13 states that treat accrued holiday and vacation days as wages without imposing any conditions. Employers in these states have to pay terminated employees for accrued vacation regardless of whether they have a stated policy. The 13 states are Arizona, California, Kentucky, Maryland, Michigan, Minnesota, Nebraska, New Hampshire, New York, Oklahoma, Pennsylvania, Texas and West Virginia.

7 states require private employers to treat accrued holidays and vacation days as wages provided that the employer has a vacation policy or plan.In these states, if the employer does not have a stated vacation policy, the employer is not required to pay for accrued vacation time. The 7 states are Connecticut, Delaware, Illinois, Iowa, Maine, Rhode Island and South Carolina.

There are other states that don't have laws on the books but have court decisions in their jurisdiction that has interpreted wages due on termination. There are other states that don't require employers to do anything.

Keep in mind that if this did happen in California, they also are required by law to pay out any wages owed within 72 hours of the termination so they may have more problems coming.

Hope this helps.

Anonymous said...

California does not paid former employees for sick time, just vacation.

HR Wench said...

To the original poster: what a sucky company. If you're going to lay someone off the LEAST you should do is pay them their PTO. Geez. That is a stinker. Sorry your family has to go through that.

HR Godess - Awesome research skillz! Where is YOUR blog? I wanna read it. Serious.

Evil HR Lady said...

We now know why I'm just an HR Lady and the HR Goddess has a much more exalted title. Wow. I didn't know that.

See, I learn so much in writing this blog.

HR Godess said...

LOL - thanks for the compliment however, I just knew where I had seen it to look it up. I just have worked for companies that have employees in multiple states so I've had to be versed on such things, especially since I've done payroll.

I learn something new from your blog on a regular basis so thanks for that!

Jaded HR Rep said...

Just adding that MA also requires accrued vacation time to be paid out. They are counted as wages.

Anonymous said...

That must be tough for people in the states that do not get paid out vacation if they are terminated. There is not a place in Canada where you could even dream getting away with that.

Dataceptionist said...

Same in Australia anonymous@April 14, 2008 2:36 PM.

Anonymous said...

HR Godess...I would appreciate links to your research sources. If you have teh time, that is!

HR Godess said...

Anonymous - That research was from one of my law books that I got from our attorney's. SHRM offers really great books on law that are specific to your state. I would check there. I have a couple and they are wonderful resources. Hope that helps!

Anonymous said...

Hey. I am getting laid off Nov. 30 2009. I just found out. My company told me they had a use it, or lose it policy....But, I also EARN my PTO time throughout the year working 6 days a week and longer hours. I actually gain 6 hours of PTO evry month or pay period. What should I do? What is my first step. Please help.

Anonymous said...

I am in Florida.

Evil HR Lady said...

Anon--you'd have to check with a Florida labor law person to know what the rules are there surrounding PTO. I've never worked in Florida, so I don't know.

Also check with HR. If they aren't going to pay out if you haven't used it by Nov 30, take vacation between now and Nov 30. Might as well get paid not to work.

Anonymous said...

Wow. That was quick. Thanks- The HR person would not approve my time-off-saying they needed a months notice- ha. I guess that's what you get after 4 years of growing a business.