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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Employment Law
Satisfied Customers: 15919
Experience:  Licensed Texas General Practice Attorney
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I work at a privately owned insurance agency. I will be starting

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I work at a privately owned insurance agency. I will be starting a new job 7/22/13. I have not told my boss yet because I'm scared they will say give me your key and walk immediately. I can't have a gap in pay due to my two small children. I scheduled a vacation from 7/15/13 - 7/19/13. I have over 80 hours of PTO and VAC time. How do I make sure I get paid for it?

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

Does your employer have any policy in place regarding giving of notice, etc... and forfeiture of vacation pay if you quit / are terminated?

Customer:

They have not said anything to me about that. I have been here two year. I am an insurance agent. My employer is very scandalous.

ScottyMacEsq :

But to be clear, as far as you know there's nothing in writing (such as in an employee handbook, etc...) regarding such a policy?

Customer:

No sir. One has NEVER been shown to me.

ScottyMacEsq :

Thank you. That's good to know. In Louisiana, an employer cannot refuse to pay accrued or earned vacation to employees upon separation from employment merely because they were terminated, regardless of the reason. See Beard v. Summit Institute of Pulmonary Medicine, 707 So.2d 1233 (La. Sup. Ct. 1998). Accrued or earned vacation must be paid to an employee upon separation from employment (even if you quit or resign) if the company policy or employment contract is silent on the matter. See Beard v. Summit Institute of Pulmonary Medicine, 707 So.2d 1233 (La. Sup. Ct. 1998).


Louisiana courts are split regarding whether an employer can refuse to pay an employee accrued or earned vacation upon separation from employment if the employee fails to comply with certain conditions, such as giving two weeks notice. See e.g., Beard v. Summit Institute of Pulmonary Medicine, 707 So.2d 1233 (La. Sup. Ct. 1998) (Supreme Court refused to explicitly state any restriction on payment of wages upon separation from employment was unlawful, but cited favorably to those cases that do); Lee v. Katz and Bestoff, Inc., 479 So.2d 459 (La. App. 1st Cir. 1985) (employer cannot place restrictions on employees to receive payment for accrued vacation). Contra., e.g., Huddleston v. Dillard Department Store, 638 So.2d 383 (La. App. 5th Cir. 1994) and Landry v. Pauli’s, Inc., 496 So.2d 431 (La. App. 5th Cir. 1986) (employers can place restrictions on employees when paying out accrued vacation upon separation from employment). But even these cases would be contingent upon there being a known policy in that regard.


An employer may cap the amount of vacation leave an employee may accrue over time. See Wyatt v. Avoyelles Parish School Board, 831 So.2d 906 (La. Sup. Ct. 2002); Beard v. Summit Institute of Pulmonary Medicine, 707 So.2d 1233 (La. Sup. Ct. 1998).


An employer may implement a “use-it-or-lose-it” policy requiring employees to use their leave by a set date or lose it. See Wyatt v. Avoyelles Parish School Board, 831 So.2d 906 (La. Sup. Ct. 2002).

ScottyMacEsq :

So if there's no policy that says otherwise, they have to pay you your accrued vacation / PTO time.

ScottyMacEsq :

If they don't, that's something that you can file a wage claim for.

ScottyMacEsq :

Here's information on filing a wage claim in Louisiana: http://www.workplacefairness.org/wage-hour-claim-LA?agree=yes

ScottyMacEsq :

You could also sue in small claims court, although the wage claim process would probably be better, since the Louisiana Department of Labor would have better enforcement ability (they could go after assets, etc... of the company)

ScottyMacEsq :

Again, that's assuming they don't pay you in the first place. Also, if they hesitate, a strongly worded demand letter letting them know your rights and that you will file complaints with the Department of Labor, as well as the insurance commissioner, etc... should show that you're serious and help overcome any obstacles.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Do I have to give a two weeks notice? I think they will fire me on the spot. That is why I put in for a vacation a week before my new job? Is this the right thing to do? They never said I had to give a two weeks notice, plus I do have something against them. They have a employee that writes insurance policies and she does not have a license to do so!!

ScottyMacEsq :

There's no legal requirement that you give 2 weeks notice.

ScottyMacEsq :

Typically this is the practice, and sometimes companies may require it (for payment of vacation, etc..) but again that has to be in writing, known to the employee.

ScottyMacEsq :

Also, sometimes a 2 week notice is something that employers want to give a positive or at least neutral reference to potential employers (if they call verifying employment).

ScottyMacEsq :

But again, there's absolutely no law that requires that you give any notice to an employer, even a minute's notice. You can just leave right now if you want to.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

I'm trying to be nice to them even though they are so unfair, so I planned on working all this week. Just curious though...if I decided to leave tomorrow should I ask them about my PTO and VAC time? Are you pretty sure I will get paid? Sorry for bugging you i'm just trying to protect my family.

ScottyMacEsq :

I understand.

ScottyMacEsq :

I don't know if you will get paid initially. But I do know if you don't get paid, you can file a claim or sue to get paid (since they don't have a policy).

ScottyMacEsq :

It's entirely possible that they won't pay you that PTO, vacation time, etc...

ScottyMacEsq :

But if they don't, that's illegal, and you can sue / file a claim / etc...

ScottyMacEsq :

So if you did decide to leave tomorrow, and they don't have a policy in place about forfeiture, then you could say that under Louisiana law they do have to give you the PTO / vacation time.

ScottyMacEsq :

Again, this doesn't mean that they will. They may need to be compelled by the Department of Labor or a court to do so.

ScottyMacEsq :

But legally they're required to.

Customer:

Ok, thanks so much and you have been awesome!

ScottyMacEsq :

My pleasure.If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!

Customer:

Sorry one more thing. Would you tell them first or just take your vac time off and then confront them

ScottyMacEsq :

Frankly that's up to you. Personally I would tell them first, but I'm looking at this in a bubble, without the context and understanding that you have regarding your employer. I assume a decent employer, etc... rather than an underhanded, unethical employer, so it really depends on your particular situation.

Customer:

They are not decent and are unethical

ScottyMacEsq :

Again, without all the context, I can't say for certain what I would do in your situation, and regardless, that's a moral question, not a legal one (since you can do either).

Customer:

Thanks, XXXXX XXXXX rating you now. You have been excellent and helped so much!

ScottyMacEsq :

My pleasure.If there's nothing else, please rate this answer. Please note that I don't get any credit for the time (>30 minutes) and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better). If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, XXXXX XXXXX luck to you!

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