Employment Law

Employment law questions? Ask an employment lawyer.

Ask a Lawyer,
Get an Answer ASAP!

My husband tendered his resignation 0n 8/17 and settled on a…

Customer Question
Hi there, my husband...

Hi there, my husband tendered his resignation 0n 8/17 and settled on a leave date of 9/1. his company tried to keep him by offering more money, but he declined their offer, and they later dismissed him on 8/28. no paperwork was signed and he was escorted out of the building. the next week, his pay check came in and they gave him one-days pay and no unused vacation time, which they have paid to employees in the past. is there a way to put his previous employer on notice and request the remaining weeks pay/vacation time?

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

NY

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

At will, full time salary

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I dont think so?

Submitted: 11 months ago.Category: Employment Law
Show More
Show Less
Ask Your Own Employment Law Question
Answered in 5 minutes by:
9/11/2017
Employment Lawyer: Marsha411JD, Lawyer replied 11 months ago
Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20,986
Experience: Licensed Attorney with 29 yrs. exp in Employment Law
Verified

Hello,

Thank you for your post. Can you tell me if by "remaining weeks" pay you mean the notice period that your husband had offered? If so, did he have a term contract or other contract that required that the employer provided a certain amount of notice prior to employment separation? Also, as for the vacation pay, does the employer have a written policy that describes under what circumstances unused accrued vacation will be paid out upon separation and if so what does it say?

Ask Your Own Employment Law Question
Customer reply replied 11 months ago
remaining week's pay refers to the notice period that my husband offered (and was accepted by his employer). They actually even asked him to work longer, but he could not based on his new employment start date. He did not have a written contract. His employer does have a written policy that they do not pay out unused vacation days if you resign; however, they did so with the last employee to resign just weeks before my husband put his resignation in.
Employment Lawyer: Marsha411JD, Lawyer replied 11 months ago

Thank you for your reply. As to the wages, neither NY nor Federal law require that an employer pay an employee for any time not worked after termination. In other words, even for salaried exempt employees NYS wage laws and the FLSA only require payment through last day actually worked. It doesn't matter whether notice was given, accepted or anything else. So, any claim, absent a contract that states otherwise, for that week of work he didn't actually work, would not be legally successful.

As for the vacation, under NYS law, vacation leave/pay is not required, but if an employer does offer it, then their policies control whether or not there is payout for any unused accrued leave. In this case, if the written policy is clear that there is no payout upon resignation, which as an "at will" employee, this would be even if the employer accepted the notice and made it effective earlier, there would normally not be a duty to pay the vacation pay. That said, if your husband can prove that the employer had a common practice of paying out vacation leave contrary to their written policy, then he might be able to win a small claims court case against the employer. He could also try filing a wage claim first for that vacation pay and provide the State will all of the specifics that he knows about their nonadherence to their written policy. But, if that fails, he would have to file suit.

Please feel free to ask for clarification if needed. If none is needed, then if you could take a moment to leave a positive rating in the ratings box on this page of my efforts to explain the law of the issue to you, then the Site will give me credit for assisting you today. Thank you

Ask Your Own Employment Law Question
Customer reply replied 11 months ago
Thank you. Do his employment rights differ from being 'dismissed' over actual termination? He didn't sign, nor did they state he was terminated. He was just asked to leave within 30-60 min, escorted out, and email shut off within 10 min of exiting. I ask because his health insurance for his next job does not start until 11/1, and because they dismissed him on 8/28, it would stand to reason we have no health insurance in Sep since they dismissed him prior to the agreed upon release date of 9/1. Since they didn't terminate him, can he not apply for unemployment coverage between 8/29 and 9/10?
Employment Lawyer: Marsha411JD, Lawyer replied 11 months ago

You're welcome, and no, the terminology between dismissed and termination has no legal meaning, so no difference. However, as I alluded to, this would actually just have been an earlier acceptance of his resignation from a legally technical position since he was an "at will" employee and neither party owes the other any notice and since he had first tendered his resignation, despite the employer initially wanting him to stay. He would not qualify for unemployment benefits because the State will accept this as a resignation (again just early acceptance and not a termination/dismissal).

As for insurance, he qualifies for COBRA, but the plan administrator doesn't have to get his election paperwork to him until up to 44 days after his last day of work. If he elected coverage at that point, it would back dated to his last day of coverage under current employer's plan. If he decides not to elect COBRA because he will have coverage from another employer, he will still be considered to not have a "gap" for purposes of pre-existing condition coverage if he gets new coverage as you have mentioned.

Ask Your Own Employment Law Question
Customer reply replied 11 months ago
ok, so his last day of work was 8/28, but he will not be covered by his new insurance until 11/1, which is a gap of 9 weeks or ~63 days?
Employment Lawyer: Marsha411JD, Lawyer replied 11 months ago

ACA provides protection for pre-existing conditions from gaps up to 63 consecutive days, so something to be aware of.

Ask Your Own Employment Law Question
Customer reply replied 11 months ago
you think the exemptions to at will employment such as good faith and fair dealing would not apply?
Employment Lawyer: Marsha411JD, Lawyer replied 11 months ago

No, this was clearly the employer's legal act of acceptance of a resignation by your husband, who was an "at will" employee, so good faith and fair dealing wouldn't play into it.

Ask Your Own Employment Law Question
Was this answer helpful?

How JustAnswer works

step-image
Describe your issueThe assistant will guide you
step-image
Chat 1:1 with an employment lawyerLicensed Experts are available 24/7
step-image
100% satisfaction guaranteeGet all the answers you need
Ask Marsha411JD Your Own Question
Marsha411JD
Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20,986
20,986 Satisfied Customers
Experience: Licensed Attorney with 29 yrs. exp in Employment Law

Marsha411JD is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

I must thank you all for such a positive and knowledgeable Expert in your Employment Law category. She has provided much relief and answers for me in the midst of dealing with a case. I am totally pleased with her customer service and care.

MildredWashington, DC

Excellent direction from Socrateaser to help me preserve and pursue my rights as a proud American who has become unemployed in this messed-up economic downfall. Thank you

Happy CustomerDenver, CO

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

< Previous | Next >

Meet the Experts:

Allen M., Esq.

Allen M., Esq.

Employment Lawyer

13,334 satisfied customers

Employment/Labor Law Litigation

Marsha411JD

Marsha411JD

Lawyer

20,986 satisfied customers

Licensed Attorney with 29 yrs. exp in Employment Law

Infolawyer

Infolawyer

Lawyer

12,478 satisfied customers

Licensed attorney helping employers and employees.

JB Umphrey

JB Umphrey

Lawyer

6,273 satisfied customers

Assisting employees and employers for over 14 years.

John

John

Employment Lawyer

4,029 satisfied customers

Exclusively practice labor and employment law.

Dimitry K., Esq.

Dimitry K., Esq.

Attorney

3,007 satisfied customers

I provide employment and discrimination law advice in my own practice.

ScottyMacEsq

ScottyMacEsq

Lawyer

2,893 satisfied customers

Licensed Texas General Practice Attorney

< Previous | Next >

Related Employment Law Questions
I work for a not for profit organic farm in south west ohio.
I work for a not for profit organic farm in south west ohio. It is run by a foundation and has 13 full time employees. My boss who is also the executive director and president of the board of director… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I have a small business with 3 employees in New Jersey. I
Hello, I have a small business with 3 employees in New Jersey. I terminated employment to one of them (9/3 10:15am). I did that as a 2-week notice to make this termination as small impact as possible,… read more
ScottyMacEsq
ScottyMacEsq
Lawyer
Doctoral Degree
2,893 satisfied customers
I worked from 9a-1030p without any break that day except 5
I worked from 9a-1030p without any break that day except 5 minutes to eat a sandwich, my employer refuses to pay me the 5 extra hours I worked because I took a sick day the previous day. I am not aski… read more
JBaxLaw
JBaxLaw
Attorney
Doctoral Degree
8,080 satisfied customers
I live in Philadelphia, PA. Upon putting in my 2 weeks resignation
I live in Philadelphia, PA. Upon putting in my 2 weeks resignation notice, I was informed by HR that the 2 weeks of unused vacation time which I accrued would not be paid to me per company policy. Is … read more
Allen M., Esq.
Allen M., Esq.
Employment Lawyer
Juris Doctor, Cum Laude
13,334 satisfied customers
I work for a co-op community as a maintenance engineer with
I work for a co-op community as a maintenance engineer with over 20 yrs of service. They have recently decided to turn over to an outside management company and no longer have in-house employees. I ha… read more
Tina
Tina
Doctoral Degree
83 satisfied customers
What is required if I am firing a housekeeper who has worked
What is required if I am firing a housekeeper who has worked for me for 2 years but has been doing a very poor job the last few months? She make $20 per hour for 9 hours per week plus paid vacation. D… read more
Sam
Sam
Attorney
Doctoral Degree
10,701 satisfied customers
In Colorado, if you are in Colorado, working for an Arizona
In Colorado, if you are in Colorado, working for an Arizona Corporation out of their Colorado Office, having earned vacation as an exempt employee, and then tender your resignation but having earned v… read more
Marsha411JD
Marsha411JD
Lawyer
Doctoral Degree
20,986 satisfied customers
I live in Illinois in the county of McHenry and was an employee
I live in Illinois in the county of McHenry and was an employee of a small business in the same. I was hired on 8/9/2010 as a salaried employee with 2 weeks paid vacation. On 8/9/2011 I was eligible f… read more
Allen M., Esq.
Allen M., Esq.
Employment Lawyer
Juris Doctor, Cum Laude
13,334 satisfied customers
My husband has resigned his job for a better one. This is his
My husband has resigned his job for a better one. This is his last week and he currently has 40 hours of vacation pay available/unused (as noted on his paystub). We are located in Florida where it is … read more
JB Umphrey
JB Umphrey
Lawyer
Juris Doctor
6,273 satisfied customers
Can a Employer withhold earned Vacation Pay if you Quit without
Can a Employer withhold earned Vacation Pay if you Quit without giving them Two Weeks notice?… read more
AttorneyTom
AttorneyTom
Attorney at Law
Juris Doctor, BSBA
1 satisfied customers
In the state of TN. One I gave a 2 week notice but was asked
In the state of TN. One I gave a 2 week notice but was asked to leave on the same day. Do they have to pay me through my 2 weeks? And 2 do they have to pay me my vacation time that is unused?… read more
Allen M., Esq.
Allen M., Esq.
Employment Lawyer
Juris Doctor, Cum Laude
13,334 satisfied customers
I am a 48 year old female and live in Mississippi my company
I am a 48 year old female and live in Mississippi my company has gone through a management change in the past 3 months; I was one of the lucky ones that they kept by the request of the board. During t… read more
MDLaw
MDLaw
Attorney
Post-Doctoral Degree
358 satisfied customers
I worked for a company for 2 plus years. The company eliminated
I worked for a company for 2 plus years. The company eliminated my position, and offered a lower paying position. I declined the offer and they wanted my two week notice in writing. Last date of emplo… read more
Tina
Tina
Doctoral Degree
83 satisfied customers
Im in the process of buy-out negotiations with my employer.
I'm in the process of buy-out negotiations with my employer. I work in Illinois. My salary is approximately $55K. Employer is offering three weeks pay ($3k). I still have about two weeks unused vacati… read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
12,478 satisfied customers
I resigned 11 months into the year, and my salary changed during
I resigned 11 months into the year, and my salary changed during the year. How is vacation time calculated, based upon my average pay for the year or based upon my salary upon resignation?… read more
JB Umphrey
JB Umphrey
Lawyer
Juris Doctor
6,273 satisfied customers
Under Wisconsin law what are the laws pertaining to recieving
Under Wisconsin law what are the laws pertaining to recieving unused earned vacation pay. I was put on permanent layoff Aug 25th. I was scheduled to be on vacation that week. I was at first told I wou… read more
N Cal Atty
N Cal Atty
Doctoral Degree
59 satisfied customers
I am a prinicpal (non- equity partner) in a CPA firm in Florida.
I am a prinicpal (non- equity partner) in a CPA firm in Florida. I earn 9 hours of vacation semi-monthly (18 hours per month). The vacation timed earned is tracked on my semi-monthly paystub. In 2007,… read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
12,478 satisfied customers
My employee just gave notice. She is 4 months into ...
My employee just gave notice. She is 4 months into her new year 2007-2008 since her hire date was October of 2005. As my employee, she gets 2 weeks (9 days) paid vacation. Can I give her a pro-rated r… read more
Family Physician
Family Physician
Doctoral Degree
140 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x