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, a lawyer/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.

Illinois law 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 you should be paid for your time.

No employment contract or policy can force you to give up your earned vacation time if you leave.  This means that any statement in the contract or policy which states that when you quit or you are fired you lose your vacation time isn’t legal.  You still receive compensation for your vacation time even if your contract or policy says otherwise.  

However, the employment contract or policy may require an employee to use their vacation time by a certain date or lose the vacation time.  The employer can only do this if they provide the employee with an opportunity to take the vacation and can demonstrate the employee knew of this policy.  

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 your work to give vacation time at all.  But, the law says that 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.

Claims for vacation must be filed with the Illinois Department of Labor within 3 years from the date the vacation is earned.  

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 argues against the claim, the whole process can take about 4 months, or more.

Finally, it’s worth noting that there are 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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