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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 19077
Experience:  Employment/Labor Law Litigation
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I live in the state of Texas. I resigned my job

Customer Question

I live in the state of Texas. I resigned my job approximately 3 weeks ago and gave a 2 week notice and stayed on for the entire 2 weeks, along with 2 other fellow employees. The owner of the company informed all of us that he would pay out our personal time off. I had accrued 170 hours, another employee, 176 hours and the third employee 80 hours. There is nothing in our employee handbook that states PTO will or won't be paid out upon separation from the company. Today, our owner informed us in an email that, at the advice of his counsel, he will not be paying out PTO because there is nothing in the handbook stating he has to. Again, he informed us in the presence of others, that didn't resign, that he would pay it out. One of us has an email from the owner stating he would pay out any unused PTO. Do we have any recourse in the state of Texas? Can you assist me in drafting a response?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

Legally, in Texas, unless they have a policy requiring that they pay out PTO at termination or resignation, they don't have to do so. Paying it even when you don't have a policy would create an established policy by practice, which is why the attorney told him not to pay.

Now, the fact that he told you he would pay is interesting, but for it to have any sort of binding effect, you'd have to prove that you behaved differently and to your detriment based on that statement. If you didn't give up something in return for that promise, it isn't contractual. You stated that you were resigning and had already planned to do that, not based on the promise of paid out PTO. That was just something he said after you gave notice.

So, unless you can show that you relied on that promise in such a way that you caused yourself harm from the reliance, there wouldn't be any sort of promissory estoppel claim. By reliance to your detriment, I mean more than simply that you really wanted it after being promised it and now that you don't get it, it's a hardship.

To give you an example, we normally see this claim when someone is offered a job but it isn't a contracted job, and before they start the job offer is rescinded. They can't sue for breach of contract because it wasn't contracted, but if they gave up other job opportunities in reasonable reliance on the promise of work, they can allege promissory estoppel. You haven't really stated what you gave up in return for that promise (so it isn't contractual) or how you actively were made worse off by your reliance on that promise. Without some argument like that, there isn't a legal argument to obtain that PTO.

If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Also, feel free to request me in the future, if you have questions concerning a different matter.

Customer: replied 1 year ago.
What if I was depending on that money between jobs?
Expert:  Allen M., Esq. replied 1 year ago.

That's not the same. You didn't give up something.

If, for example, you had the offer of a part time job to help you between jobs, but you gave that up based on the promise, then your situation changed specifically based on your reliance on the promise.

You were going to be without money between jobs before the promise, so your situation didn't change based on your reliance on the promise. You didn't give up something (at least, you've not mentioned anything that you gave up) in order to obtain that promise or in reliance on that promise.

Your detriment has to be the loss of something else you gave up in reliance on the promise. As in the example I gave, the person gave up other job opportunities in reliance on the promise of employment. The detriment isn't the loss of the promised job....it's the loss of the other jobs they could have taken but didn't because they thought they had a job.

Customer: replied 1 year ago.
If I had known they weren't going to pay out the pto as promised, I would have worked longer and taken the time off.
Expert:  Allen M., Esq. replied 1 year ago.

Well, that could work, but it will depend on the facts here.

You stated above (at least your statement makes it seem that), you gave notice and then were told that they'd pay out your PTO. Now, arguing that you wouldn't have given notice if they hadn't promised that, it's trying to put the cart before the horse.

If you gave notice after being told that, then it is more reasonable to argue that you gave notice based on that promise. So, which was it? Which came first, the promise or your resignation, because legally it matters.

Customer: replied 1 year ago.
I gave notice after the statement was made to promise was made to pay out our PTO.
Expert:  Allen M., Esq. replied 1 year ago.

Ok. That makes the situation more in your favor and you couldn't argue reasonable reliance.

You received a promise which you reasonably relied on. You didn't have to give notice when you did, but did so based on that promise. Your reliance on that promise worked to your detriment, as you didn't receive the funds and also couldn't continue to work, as you gave up your job early in reliance on that promise.

That is the classic statement of a promissory estoppel claim which you'd have to file in state court.

Expert:  Allen M., Esq. replied 1 year ago.

Hello, I wanted to check in and make sure that there was not any additional information that you required. If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.