Illinois employment law question: accrued vacation pay upon termination?

Factual Questions
1

To make a long story short, the law firm where I worked for the past year seems to be slowly going kablooey. A month ago, the partner I work for decided to leave and take his practice to another firm, and bring me with him.

On the one hand, this is good, as I am still gainfully employed. On the other hand, it meant that I left the prior firm about 2 weeks before completing my first year, and they don’t seem to want to pay me for the vacation time I earned over that period, even on a prorated basis. And the annoying part is that it’s not even like I had the choice of staying; the practice area I was working in (immigration) has nobody left now that the partner has departed, so I would have been out of a job if I hadn’t gone with him.

The HR policy was very vague; the entirety of employee benefits information I was given fits on one page. The time off section reads, in its entirety, as follows:

"Your vacation time is based on your employment date and years of service. It is broken down as follows:
1 completed year of service - 2 weeks paid vacation.
6 - 10 years of service - 3 weeks paid vacation
10 or more years of service - 4 weeks paid vacation

[LAW FIRM] provides up to 10 paid absent days, including sick time in each calendar year. During the first 6 months of employment, no paid absent days are available. For the first calendar year of employment, paid absent days will be prorated for the amount of the year remaining at the end of the new employee’s first 6 months."

Now a colleague here told me that IL law requires payment for all accrued vacation time, i.e. that they can’t require completion of a full year before paying for accrued vacation time upon departure (and I was only 2 weeks short of finishing a year anyway).

Any idea whether this is true? The following links appear to lend ammo to that assertion (says my stepmom, an employment attorney licensed in NY and IL, but who hasn’t practiced in IL in years), but of course, the devil is in the case law:

http://www.ilga.gov/commission/jcar/admincode/056/056003000B05200R.html

Looks like they do owe me for vacation pay, no? Cites would be appreciated - my boss is going to bat for me, but he’s not an employment lawyer, and if the firm ends up dissolving, they may have very little incentive to play by the rules. Your assistance would be greatly appreciated, as it’s worth half a month’s pay to me.

ETA more ammo from stepmom: "Il Labor Law:

(820 ILCS 115/5) (from Ch. 48, par. 39m?5)
Sec. 5. Every employer shall pay the final compensation of separated employees in full, at the time of separation, if possible, but in no case later than the next regularly scheduled payday for such employee. Where such employee requests in writing that his final compensation be paid by check and mailed to him, the employer shall comply with this request.
Unless otherwise provided in a collective bargaining agreement, whenever a contract of employment or employment policy provides for paid vacations, and an employee resigns or is terminated without having taken all vacation time earned in accordance with such contract of employment or employment policy, the monetary equivalent of all earned vacation shall be paid to him or her as part of his or her final compensation at his or her final rate of pay and no employment contract or employment policy shall provide for forfeiture of earned vacation time upon separation.
(Source: P.A. 83?199.)"

I guess it comes down to whether I can be considered to have “eanred” the vacation time, even without completing the entire year.

2

IANAL but it looks to me that your vacation policy says 2 weeks of vacation after one completed year. How is vacation accrued after this time? Is it in a chunk or is it by pay period?

Would you or anyone else be able to take vacation before one year of service? It doesn’t sound like paid absence time is the same as vacation time, being for sick days, etc. When I left AT&T, our version of paid absence time, called personal days, was not paid. I wasn’t complaining, since our entire vacation allotment got accrued at the beginning of the year - I left Jan. 15 and got paid for 20 days of vacation.

If you haven’t accrued any vacation time yet, then the law wouldn’t require that it be paid. It looks to me like you’re out of luck. If, however, it is common practice for people to take vacation before a year is up, you might be able to argue it on those grounds, but I have no idea if you would be successful, or if it would be worth the two weeks of pay you’d get.

3

In a chunk.

There isn’t much, if any precedent on that point - the policy was changed after the firm got burned by the 2 previous people in my position, one of whom constantly called in sick (read: hung over), and was fired after a couple of months. There was only one other person hired after me - she took a week of vacation after 6 months, but it was unpaid. And yes, paid absence time is sick time, not vacation time - I just included that section to show how bare-bones the description of the HR policies is. To me, it seems kind of odd for a law firm.

I guess that’s the $64,000 question, or at least the two weeks of pay question; at what point am I considered to have “accrued” the vacation? If I don’t get anywhere by asking nicely, I suppose I have nothing to lose at this point by filing a complaint with the state Dept. of Labor. I’d rather not, but I just might if they persist in not even responding to my boss’ inquiry on my behalf - the breakup of a legal partnership can be an ugly thing.

4

Hmmm…that’s definitely a sticky point.

IANAL ( as you well know ), but I fear Voyager may be right. At my job we can’t take vacation our first year either ( or at least we couldn’t when I was first hired ), but we started accrueing it from day one on an “hours per pay period” basis. If instead you get one two week chunk at the completion of each year, I could easily see them arguing that you are shit out of luck.

Unless you meant you get those two weeks, then would start accrueing by pay period thereafter? In that case, I think you could make the case that if the accrual is usually by pay period you are owed the time accrued.

But I’m sure none of the above isn’t anything you already know, so I’ll vamoose and let the experts chime in. Best of luck. And if you get the money, you can use it for you and Tom to come visit next year :wink: ( who needs adventure! :stuck_out_tongue: ).

5

Eva Luna, you, if anyone here, should know that a really valuable answer to your question cannot be had by asking around on a message board, even one so nice as ours. Without talking to someone well-versed in Illinois employment law, you are simply going to get advice worth what you pay for it. :smiley:

I recommend seeing if the partner you followed can get some advice from a friend who deals in the area. With a solid understanding of the law, or at least a good interpretation of it, you might shake loose some money if you are truly entitled. Or, you can always turn the matter over to whatever state department handles wage disputes… :slight_smile:

6

Yeah, but you can see that they aren’t very descriptive about how it’s accrued. I think that when they laid off my boss’ secretary upon her departure, and another secretary who was laid off, they were paid for accrued vacation, which would lend ammo to my cause - it might be worth a call to them to find out.

What, you mean you don’t want to come to Chicago sometime over the next few months? :wink:

Ummm, :: sheepishly raises hand ::

(And no, 10 days over Christmas with the retired minister and the entire rest of the family in a foreign country doesn’t make me apprehensive, not at all! Even if I’ll be the only one fluent in the local language.)

7

Oh, believe me, I know. I was just hoping someone might chime in with a definitive cite or two. :: paging Random ::

Oh, those are definitely part of Plan B, as is my stepmom, the labor lawyer licensed in IL (though unfortunately she hasn’t practiced here in 20+ years). And really, I have nothing to lose by filing a complaint with the state Dept. of Labor, except further damaging an already messed-up relationship with the old firm.

Thanks, guys - and if anyone has further concrete info, please keep it coming!

8

Illinois Department of Labor
Fair Labor Standards Division
160 N. LaSalle Street, Suite C-1300
Chicago, IL 60601
312-793-2800

9

I just called the IL Dept. of Labor, and they tell me that according to the Illinois Wage Payment and Collection Act, my former employer is required to pay me for the 11.5 months of accrued vacation.

Now the fun part - I don’t want to be confrontational, but I do want to get paid what they owe me. I will have to talk to my boss about the best way to handle this.

10

The last company I was at laid me off with no notice and tried to short me on vacation I had earned. I went to the head of HR with a copy of the law and the link to the information. I told her that they were legally obligated to pay me what I was due. She hemmed and hawed, and tried to say that the law didn’t apply because the company was headquartered in GA. I told her too bad, I live and work in IL. She said she had to go to the legal department.

I told her she had one week to get me my money. She called the next day to tell me I was right and a check was FedExed to me the day after.

Be confrontational and don’t take any crap from them. They owe you money. Good luck.

11

I’d be less hesitant about being confrontational if I didn’t still have to deal with them on a daily basis - we have TONS of government mail, etc. that will arrive there for months or years to come, and that will not be forwarded, and that will be a HUGE PITA to have reconstructed if we can’t have someone from here go pick it up there every day, which they have been cooperative about so far. (Immigration documents aer not forwarded; they are returned to USCIS and then destroyed, and it can take months and multiple attempts to get them replaced, which has the potential to impact hundreds of people.)

Sigh…I think they will do the right thing in the end; they are just playing hardball at the moment. My boss is off at a green card interview right now; I will talk to him later about the best way to approach the situation. And there’s certainly no jurisdiction issue here.

12

You might ask your boss if the new firm will recognize your seniority and accrued vacation time. If so, then you can just let the issue go.

13

Not legal advice–just some practical things to ponder.

Write a polite letter. Cite the law. Ask for your money in an exact amount. If they don’t go along, then drop it. Everyone involved knows that suing a law firm for two-weeks’ salary would be a negative net income proposal.

Break-ups like that usually end up with everyone taking some hits–you’re still employed so, chalk it up to a cost of doing business and maintaining relationships. And good luck.

14

That’s the plan if my boss doesn’t get anywhere with the managing partner at the old firm.

I’m certainly not contemplating suing them. However, this is where I believe that the reason my tax dollars support state government is to protect the little guy; it costs me nothing except filling out a form, and potentially a brief informal hearing, to file a complaint with the State Dept. of Labor, which they have already told me is a slam-dunk.

Thanks for the good wishes, but half a month’s pay is nothing to sneeze at, and I’m not willing to let a bunch of quite well-compensated lawyers keep that money without at least a bit of a struggle.

15

If push comes to shove, you need to think hard about how much losing good will might be worth to you. Yep, the 2 weeks worth of pay would be mighty nice, but will it make the next 20 years worth of interactions a living hell?

Here’s hoping you get your money AND keep a decent relationship with the old firm.

16

Hmm, that would imply that it is illegal to hold vacation for a year, but that the right to it has to accrue. That would be nice. I wonder how they handled the financial side. I know that a company has to handle accrued but unused vacation as an expense - when my current company wanted to improve its bottom line, it made us take vacation for a week, since most of us are driven engineers who save up tons of vacation. If they accrued it on the books throughout the year, then their manual is wrong.

As to the second question, I’d suspect it would be much cheaper, giving the ruling you got (right or wrong, no matter) to pay you and not fight the Department of Labor.

As for whether they are right or not, it depends on if a year is within the “limited” period mentioned in your first link.

17

I’m not going to need to interact with the firm for 20 years, and frankly at this point I doubt they will be in existence for anything close to that long. Most of the attorneys are at or close to retirement age, and the reasons for the firm’s apparent breakup are largely financial. That’s why I want to take care of this ASAP - if the firm dissolves entirely (and they have already tried to get out of their lease), I doubt I will ever see the money, and I won’t give a damn about the relationship.