Should My Employer Pay Me for Unused Vacation Days When I Leave My Job?

Should My Employer Pay Me for Unused Vacation Days When I Leave My Job?
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Last updated: December 2004

The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette. This column provides general information, and cannot be relied upon as legal advice.

Question

I had 8 days of vacation coming when I recently changed jobs. My former boss paid me for the time I worked before leaving, but hasn’t paid anything for my vacation days. Don’t I get paid for my unused vacation? How do I get my money?

Answer

You should get paid for your unused vacation. If your old boss won’t agree to pay, you can file a wage claim with the Illinois Department of Labor.

The Illinois law that applies is called the Wage Payment and Collection Act. It covers how employers are supposed to pay employees, along with things like what kinds of deductions an employer can make when you leave work.

If an employee leaves “without having taken all vacation time,” the law is very clear that “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.”

This law also applies to “paid time off,” where employees earn days they can take off as either sick or vacation days. The law does NOT apply to sick time, where you really have to be sick to take the time off. Unless your employment contract specifically says you get paid or shall receive some kind of credit for unused sick time, you simply lose it when you leave.

The law does not require an employer to give vacation time at all.  But, the regulations say “oral promises, handbooks, memoranda, and uniform patterns of practice may create a duty to pay the monetary equivalent of earned vacation.” If an employer does provide paid vacation, they have to keep annual records of how much is earned and taken.

If your old employer won’t pay for your vacation time voluntarily, file a wage claim with the state Department of Labor. They’re responsible for investigating and deciding claims. Call 312-793-2808 to get their 3-page claim form (no toll-free number, unfortunately). The process starts officially when you return the completed form.

The Department of Labor gets your story, the employer’s story, and holds a hearing if they can’t resolve it informally. The hearing officer can order the employer to pay you what you’re owed. If the employer contests your claim, the whole process can take about 4 months, or more.

Finally, it’s worth noting that there are basically only 2 ways an employer can make deductions from a final paycheck:

  • The employee agrees to them in writing ahead of time; or
  • The employer immediately notifies the Illinois Department of Labor about the deductions. 

If the employer deducts and notifies the Department of Labor, the employee gets notice of the deduction, and a chance to contest it.

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