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Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20395
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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My husband tendered his resignation 0n 8/17 and settled on a

Customer Question

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?
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: NY
JA: Is the employment agreement "at will," union, full time or part time?
Customer: at will, full time salary
JA: Anything else you want the lawyer to know before I connect you?
Customer: i dont think so?
Submitted: 1 month ago.
Category: Employment Law
Expert:  Marsha411JD replied 1 month ago.


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?

Customer: replied 1 month 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.
Expert:  Marsha411JD replied 1 month 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

Customer: replied 1 month 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?
Expert:  Marsha411JD replied 1 month 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.

Customer: replied 1 month 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?
Expert:  Marsha411JD replied 1 month ago.

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

Customer: replied 1 month ago.
you think the exemptions to at will employment such as good faith and fair dealing would not apply?
Expert:  Marsha411JD replied 1 month 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.