Published in the Union Leader (10/24/2016)
Q. I worked as a licensed nursing assistant for a New Hampshire company for about two years. In late September I told my HR department contact that I would be leaving to return to school full time to complete a nursing degree. I gave a one month official notice.
They asked if I would continue to work weekends to fill shifts, which I agreed to do. However, I would become a part time non-benefited employee at a higher rate of pay. When I gave my notice I had 34 hours of vacation/personal time and 108 hours of sick time. The company now says that I have forfeited that time as I am now a non-benefited employee. Is this legal?
A. What your employer did may very well be a violation of New Hampshire law. Employers are not required to provide employees with paid vacation or sick leave, but when they do, they must follow certain rules. First, the employer should have a policy regarding use, accrual and loss of unused paid time off. That policy should tell you whether and under what circumstances you might lose accrued time.
For example, an employer may have a “use it or lose it” policy stating that you may not carryover unused time at the end of a year. They may also have a policy which provides that they will or will not pay out unused time when an employee leaves a company.
The first thing you should do is to review that policy to see if it covers your situation. Note that policies are often different for vacation and sick time. Some employers will pay out vacation time but not sick leave, and that is their choice as a matter of policy.
Your case is a bit different because it appears that you remained an employee but went from full time to part time. If your employer’s policy does not specifically cover this scenario and clearly state that you lose accrued time in such circumstances, the New Hampshire Department of Labor would likely say that your employer was wrong in depriving you of accrued paid time, especially without giving you the opportunity to use the vacation time prior to converting to part time.
If you still have questions about this after you have reviewed your employee handbook, you should contact the New Hampshire Department of Labor wage and hour division. They should be able to answer any further questions you have.