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Work & wages · Question

Do you get paid for unused vacation when you leave a job in New York?

Updated By The editorial teamNot reviewed by an attorney — based on the official sources below

In short

It depends on your employer's policy. New York doesn't require employers to offer vacation, but if they promise it, earned vacation pay is a 'wage supplement' you can claim. According to the Department of Labor, an employer can make you lose unused vacation when you leave only if it told you in writing about the conditions under which it is forfeited; if there is no written forfeiture policy, accrued vacation must be paid. Unused sick leave and prenatal leave, by contrast, don't have to be paid out under the law.

Read on for the details, the exceptions and the sources.

In plain words

Accrued vacation
Vacation time you've already earned under your employer's policy but haven't used.
Forfeiture policy
A written rule saying you lose unused vacation in certain situations — for example, if you quit without notice or are fired for cause.
Wage supplement
A promised benefit on top of wages, such as vacation, holiday or separation pay, or expense reimbursement.

The full answer

Labor Law § 198-c treats vacation, holiday and separation pay, expense reimbursements, and health, welfare and retirement benefits as 'benefits or wage supplements'. An employer that agreed to provide them and doesn't pay within 30 days after payment is due commits a misdemeanor, and under § 190(1) wage supplements count as 'wages' for most wage-claim purposes, so you can recover them through the DOL or in court.

Payment for time not worked, such as vacation and holidays, isn't required unless the employer has a policy to provide it, and the employer can set the conditions. The DOL explains that an agreement to give vacation can specify that employees lose accrued benefits under certain conditions — but only if the employer told employees in writing of the conditions that cancel the benefit. Its rule of thumb: if you earned vacation time and there is no written forfeit policy, the employer must pay you for it.

Employers must tell employees in writing, or by publicly posting, their policy on sick leave, vacation, personal leave, holidays and hours (§ 195(5)). If there is no written policy, the DOL says an oral policy or past practice may be enforced if its terms can be confirmed in an investigation.

Exceptions and special cases

  • A typical forfeiture condition is quitting without giving the notice the policy requires; the DOL treats such conditions as valid only if employees were told about them in writing.
  • Because the employer sets the terms of a vacation policy, rules such as caps on carryover can also apply while you're employed, if the policy says so.
  • Paid sick leave under § 196-b and paid prenatal leave don't have to be paid out at separation, unless the employer's policy promises it (§ 196-b(4-a), (6)). If your employer gives one combined PTO bank, read how its policy treats payout.
  • Executive, administrative and professional employees earning over $1,300 a week aren't covered by § 198-c's criminal provision (§ 198-c(3)), and the DOL won't take their claims; they may still be able to enforce a promised benefit in court.
  • Union members: if vacation pay is covered by a grievance and arbitration procedure, the DOL won't take the claim; use the union process.

What to do now

  1. Get the policy

    Ask for the written vacation policy or handbook section, and the record of your accrued hours. Check whether it says, in writing, that unused vacation is forfeited when you leave and under what conditions.

  2. Ask in writing for payment

    If no written forfeiture rule applies to you, ask for payment of your accrued vacation with your final pay.

  3. Wait 30 days, then file

    The DOL accepts a wage supplement claim once 30 days have passed since it became due. File form LS223 with the Division of Labor Standards, or sue (including in small claims court).

  4. Mind the deadlines

    The DOL won't accept claims older than three years; court claims under the Labor Law generally have a six-year limit (§ 198(3)).

Frequently asked questions

My handbook says I lose vacation if I don't give two weeks' notice. Is that enforceable?

Generally yes, if the condition was in a written policy you were told about. The DOL says employers can set conditions for forfeiting vacation, but must tell employees in writing.

There's no written policy, but my boss always paid out vacation to people who left. Does that count?

Possibly. The DOL says an oral policy or past practice may be enforced if its terms can be confirmed through an investigation.

Does New York require paid vacation or paid holidays?

No. The DOL says payment for time not worked, other than sick leave, isn't required unless the employer established a policy to pay it.

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Official sources

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This page is general information based on the official sources listed, current as of the update date. It is not legal advice and does not replace a review of your own situation; if a case is already in court, a deadline is close, the amount is large, or there are criminal, immigration or family-law consequences, talk to a lawyer or legal aid.