If promised, vacation must be granted. Although no West Virginia law requires private sector employers to provide employees with vacations, paid or unpaid, most employers do offer their employees some version of vacation.
Thus, it is important for employers to remember that if they “promise” vacation, they may be legally bound to provide it—and that a binding promise does not require embodiment in a formal employment contract. West Virginia courts have ruled that, under some circumstances, an employer's assurance of paid vacation time, whether made in an employee handbook, given orally, or simply understood as a matter of consistent practice, may constitute an implied contract, which is binding and enforceable.
Payment due upon termination. Whether unused vacation must be compensated at termination depends on what the employer has agreed to, whether explicitly or implicitly. West Virginia's statutory definition of “wages” includes accrued fringe benefits, which include agreed-to vacation.
If paid vacation is promised or provided, an employee who leaves the payroll must be compensated for accrued but unused vacation. If not, the employer may be liable for 30 days' pay, attorneys’ fees, and court costs, in addition to the wages due (WV Code Sec. 21-5-1, Sec. 21-5-4; Ash v. Ravens Metal Products, 437 S.E.2d 254 (1993)).
Accrual method. Employers are free to devise their own systems for vacation accrual. There are several different commonly used options:
• On a monthly basis
• On a pay-period basis
• Upon completion of a 6-month or 12-month period
It is important to be clear and unambiguous when drafting such policies. If the policy is intended to ensure that employees work the entire accrual period to earn their ...