If promised, vacation must be granted. Although no New York law requires private sector employers to provide employees with vacations, paid or unpaid, most employers do offer their employees some version of vacation. It is important for employers to remember that if they “promise” paid vacation, they may be legally bound to provide it.
A binding promise does not require a formal employment contract. New York courts have ruled that under some circumstances, an employer's assurance of paid vacation time, whether made in an employee handbook or given orally, or simply understood as a matter of consistent practice, may constitute an implied contract, which is binding and enforceable.
Accrual method. Employers are free to devise their own system for vacation accrual, for example, on a monthly or pay-period basis, or upon completion of a 6-month or 12-month period. It is important to be clear and unambiguous in drafting such policies.
If the policy is intended to ensure that employees work the entire accrual period to earn their vacation days, it should state clearly that employees will not be entitled to pro rata payment if they leave partway through the period. Remember that any vagueness in the policy is likely to be construed against the employer.
Vacation pay due at termination? Employers are not required to pay earned vacation upon separation if they have language in their policies notifying employees they forfeit earned vacation pay upon their termination of employment.
If conditions and the notice of forfeiture are not given to employees in writing and the employee has earned vacation time, the employer must pay it (Glenville Gage Co., Inc. v. Industrial Board of Appeals, 70 A.D.2d 283 (3d Dep’t ...