Difference in vacation payment

[dtm1966]

What is the name of your state? Texas

I actually posted this under small claims court on 6/15 but no one replied to me. I am hoping someone in this forum may be able to respond. I tried to make a link to jump over there but couldn't figure out how to do it so I am copying it over. Sorry if this breaks the rules

What is the name of your state? Texas

There are 5 employees suing our former employer in small claims court for unused vacation pay. I worked for a contracting firm A (who basically was my former employer – it was a one man show) who placed me at firm B. This was a long-standing agreement of 20 years. I worked for company A for 5 years. He had a vague vacation policy that did not address vacation pay upon termination.

In March the company B decided not to renew the contract. There were 10 employees working for company A at the time. Company B contracted another company for the same services and this new company offered to hire me and 7 of the other employees but not the other 2 based on the understanding company B would like to continue working with us.

Of the 10 employees 7 employees had 80 hrs of unused vacation each. Of the 7 employees, 6 went with the new company and 1 was not offered a position. So 6 of us with vacation resigned on March 14 from Company A and the 1 of us with vacation was laid off on March 14 by Company A because they had no more work (they only had the one contract). If we 6 had not resigned, Company A would have also laid us off too. My employer (Company A) paid the 1 employee he laid off his unused vacation pay but refuses to pay the 6 employees who resigned.

Although the 1 employee who was laid off says he got paid for his unused vacation, he refuses to put anything in writing for us, saying he was paid and that’s all he cares about. (He is angry with us because we were offered a position with the new company when he was not, even though we had no input). My former employer has requested jury trials and says he wishes to go through discovery prior to the sample claims trials. He has not actually set the hearing date for the discovery in from of the judge yet.

My questions:

Is there any real difference between the employees who resigned and the one who was laid off since it happened on the same day and resulted from the same contract being cancelled?

Is there any way in discovery (if it happens) or without discovery to request documentation (payroll records etc) to show he paid the one employee since this is the only way we would be able to prove it if my employer denies it

Thank you

 

[cbg]

Before answering either of your questions, you need to be aware of something vital to your "case".

NOTHING IN EITHER FEDERAL OR TEXAS LAW REQUIRES YOUR EMPLOYER TO PAY YOU UNUSED VACATION TIME AT TERMINATION. IF your employer has had a policy of paying out vacation time at termination to all employees, THEN you might have a case. But since you say the agreement does not address the issue of vacation pay, NOTHING in the law is going to require him to pay it.

Now, to your questions.

1.) It is ENTIRELY possible, and ENTIRELY legal, for your employer to differentiate between employees who were laid off and employees who resigned, in deciding whether or not to pay vacation time. If they want to pay vacation to laid off employees but not to employees who resign, they can do that. It IS legal.

2.) As far as I know, and one of the attorneys can correct me if I'm wrong, you can only get this information if you have a court order. NOTHING in the law requires them to give it to you. Nor would it make the slightest bit of difference because, as I told you above, it IS legal for them to pay him his vacation and not you. So proving that they paid him his vacation would do nothing to force them to pay it to you as well.