Question: I was recently terminated by a municipal employer for which I am sure they will claim was “cause.” Over the course of my employment I have accumulated significant “leave time” and “comp time” that, under normal circumstances, and according to the Leave Manual would be given to me in a lump sum upon separation. Can they deny me this earned income because I was terminated for cause?

Bruce
New York, New York

Answer: Dear Bruce: As a general rule, all employees must be paid for all time worked. However, there is a fundamental difference between “comp time” and “leave time” when that rule is applied.

1. By federal law all employees (other than executives, professionals and managers) must be paid at an overtime rate (time-and-one-half) after 40 hours of work in a week. The federal Fair Labor Standards Act (often called “FLSA”) requires such “overtime pay.” However, municipal government employees, like yourself, may be offered the option of taking “compensatory time” (often called “comp time”) which is time off instead of the earned overtime pay.

2. By federal and state law, all kinds of payment for work must be paid upon separation; there are only a few exceptions, and “comp time” is not one of them. Employers cannot withhold from workers any compensation of any kind – including “comp time” compensation – upon the employee’s departure. There are a few exceptions; for example, if the employee owes the employer money, that might be a reason not to pay monies earned in order to pay off that debt, so long as the debt in question is a clear and obvious one, not a vague claim. There is no exception for those “fired for cause.” For this reason, you should be paid the overtime pay you earned, or payment for the “comp time” you have accumulated, upon your departure.

3. Leave Time (or Vacation Time) is very different; it is not a form of wages, but rather a benefit that is not required by law. There is no law that requires employers to give employees time off for vacation, or personal leave. These are not considered forms of mandatory “wages,” but rather, these are given to employees as non-mandatory “benefits.” So, no federal or state law requires payment of accumulated leave time upon employee departure.

4. That said, if (a) an employment contract (including a union contract) guarantees you payment of leave time when you leave, or (b) your employer does that as a regular practice, then by “contract law” you have a right to it. “Statutes” are laws passed by Congress or state legislatures that give rights. People also have rights by “contracts” or agreements. If you are party to a contract that guarantees you payment of leave time when you leave, such as an employment contract or a union contract, then you must be paid it. In New York, the law says the following: “If your employer has a regular practice of paying people their accumulated leave or vacation time upon departure, then that is considered an ‘implied contract’ that guarantees you that payment, too.”

5. My experience, though, is that almost all employers have a policy that says “If fired for ‘cause,’ you don’t get paid accumulated leave or vacation time.” It is near universal that, upon termination for alleged “cause,” employers give employees only the very bare minimum they are legally entitled to: no severance, no vacation time, and no unvested benefits. My guess is that your employer has such a policy; you need to check with Human Resources.

Bottom line, Bruce, unless you have a contract that gives you more than most employees who are terminated for “cause,” you should be entitled to accumulated comp time, but not accumulated leave time. Some good news, some not-so-good news. “Half a loaf is better than none.”

I hope and trust that, if you do not believe you have committed “cause” to be fired, you will stand up and fight those allegations.

Monies due you (vacation pay, commissions, bonus, wages, expenses, etc.) owed you by former employer? Your best bet is to make a written request. We offer a Model Letter Requesting Monies Due You by a Former Employer. Shows you “What to Say, and How to Say It.”™ To obtain your copy, just [click here.] Delivered by Email – Instantly!

I hope this helps a bit. Thanks for writing in. Good luck in your job hunt!

By the way, tired of all this reading? Rather just sit back, relax, watch and listen? Consider Sklover Videos On Demand. See our Complete List. Just [click here].

Best,
Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.