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Payment of unused vacation and sick days in Pinellas County

by David Fulleborn | May 2, 2023 | Business Law, Employment Law

Does my employer have to pay me for my unused vacation and sick days? Maybe! At least in Pinellas County.

What happens to your unused, but accrued, paid time off (PTO) when you leave your job in Florida? The answer varies by employer and by state, and apparently, by county here in Florida. This result stems from the fact that Florida has no laws regarding PTO, leaving counties with the ability to enact their own ordinances. At least one county, Pinellas County, enacted an ordinance that affects employers’ PTO policies, potentially entitling employees to payment for their unused paid vacation days and paid sick leave.

Employer policies for accruing paid vacation days and paid sick leave

There is no requirement to provide employees with paid time off in Florida. Despite the absence of a legal requirement, many employers voluntarily provide employees with paid sick leave and paid vacation days to improve employee morale and make the employer more competitive in recruitment efforts.

Because Florida has no law regarding PTO, employers are free to use virtually any policy they want for vacation days. Some employers allow employees to earn vacation time for each hour or week worked. For example, employees might earn 4 hours of vacation leave per two-week pay period or 8 hours per month. Other employers may simply credit employees with all their vacation leave at the start of the year.

Employer policies can also vary with sick leave. In Florida, employers are not required to provide sick leave at all. Instead, the only requirement is that employers comply with the Federal Family and Medical Leave Act, 29 U.S.C. §§ 2301-2654, which can require certain employers to provide full-time employees with up to 12 weeks of protected unpaid leave.

Employers can award sick leave similar to vacation days – by allowing employees to accrue time throughout the year or by granting all of the time upfront.

Employers have virtually unlimited discretion in how they want to give employees PTO. The only rules are that the employer’s policy must be uniform and cannot discriminate against employees based on protected characteristics. For example, an employer cannot give women more PTO than men. Employers are free, however, to have different policies for full and part-time employees or to have policies that differ between job roles, locations, and seniority.

Employer policies for using PTO

Employers are also free to set their own policies for using general PTO. For example, an employer could have a policy that states that paid vacation can only be used with 4 weeks of notice, and any leave taken with less than 4 weeks of notice is unpaid. Employers can also require any paid sick leave to be accompanied by a note from the employee’s healthcare provider. Employers can require employees to use their paid vacation and sick leave concurrent with any FMLA leave as well.

Employers can have a policy that employees “use it or lose it” when it comes to vacation and sick days, and the policy can apply to some or all of an employee’s accrued, unused PTO. Because Florida, like many other states, has no laws regarding paid leave, employers are free to do almost whatever they want.

My employment agreement does not say what happens to unused paid leave. Will I be paid for unused vacation days or sick leave if I quit or get fired?

The general rule in Florida and most states is that if you do not use your accrued vacation days before the end of your employment, those days are forfeited. It does not matter if you are terminated or fired, or if you resign and quit. Any unused vacation days are lost because your employment has ended so you cannot take vacation or sick leave to trigger payment. You simply are not paid for the value of those days.

However, suppose your employer has a policy or practice of paying employees for unused accrued PTO at the end of their employment. In that case, you may legally be entitled to compensation for the accrued but unused PTO under a breach of contract theory.

Pinellas County’s Wage Theft and Recovery Ordinance

Pinellas County stands as an outlier in Florida, and employees in Pinellas County may be entitled to payment for unused vacation days and sick leave at the end of their employment, even when terminated.

The Pinellas County Wage Theft and Recovery Ordinance, Sec. 70-301 to 309, provides employees with additional rights both for PTO and for the payment of wages generally. Section 70-305 of the ordinance defines “wage rate” as

any form of monetary compensation which the employee agreed to accept in exchange for performing work for the employer, whether daily, hourly or by piece but in all cases shall be equal to no less than the highest applicable rate established by operation of any federal, state or local law.

The Wage Theft and Recovery Ordinance further specifies that wages “shall include earned paid time off, leave, vacation and sick pay.”

If an employer fails to pay an employee in Pinellas County their wages, according to the Pinellas County Wage Theft and Recovery Ordinance, the employer has committed “wage theft.”

But what exactly does it mean that wages “shall include earned paid time off, leave, vacation and sick pay?” The wording is a bit ambiguous. Does the ordinance mean that your employer must pay you for any unused PTO when your employment ends? Or does it simply mean that an employer’s failure to pay you the leave you took can constitute wage theft, just like failing to pay any other wages?

The Pinellas County Office of Human Rights answered the question on October 24, 2022, in Colvin v. New Direction Career Services, Inc., Case No. PCOHR-WT-22-00028 (Oct. 24, 2022). Colvin, the employee, claimed that New Direction Career Services failed to pay her for 64 hours of accrued, but unused, vacation leave and 64 hours of accrued, but unused, paid sick leave, for a total of 128 hours of accrued, unused PTO.

New Direction Career Services argued to Special Magistrate Christopher Shulman that the PTO was intended to be “use it or lose it.” But, this policy was never written in the company’s employee handbook. What was in the handbook, however, was a discussion about how “vested benefits” would be paid out upon termination. New Direction Career Services told Magistrate Shulman that this policy was only intended to pertain to 401k, life insurance, and similar benefits.

Magistrate Shulman (in an opinion that carries weight only in Pinellas County) wrote,

Typically, under Florida law, vacation pay is an item of wages and sick leave is a benefit. Consequently, absent evidence proving that the contrary was agreed upon, accrued but unused vacation pay is an item of wages that must be paid out upon termination of employment, absent an explicit reservation by the employer to the contrary.

Magistrate Shulman then awarded Colvin double the amount her employer owed in PTO under Section 70-308(a)(1).

Other common exceptions

Federal, state, and local employees in Florida are also common exceptions to the rule that unused accrued PTO is lost when the employment relationship ends. Federal employees are generally entitled to a lump sum payment for unused leave. Many localities in Florida permit employees who leave on good terms to be paid for at least a portion of their unused leave. Additional exceptions are commonly found in collective bargaining agreements for unionized workplaces.

The bottom line

Most employees in Florida are in a “use it or lose it” situation for unused accrued PTO. At the end of the employment relationship, unused PTO is just lost. That situation can be modified by employer policy or ordinance. And, if an employee is in Pinellas County, they will generally be entitled to payment for unused accrued PTO unless their employer has expressly stated that their PTO is lost in a handbook or similar document.

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