Portland, OR asked in Employment Law for Oregon

Q: My employer is not paying out my PTO because they are saying since I called in sick during my 30 day notice.

My employer is not paying my PTO because they say that I was “not fulfilling my work duties” since I called out sick one day during my 30 day notice. Are they able to do this?

They are not paying for the sick day, which is noted in the handbook since I called out during my 30 day resignation period.

But they are saying that calling in sick during my notice period is considered not fulfilling my work duties during my notice period thus resulting in them not paying out my PTO. Which I have over 100 hours of.

Related Topics:
2 Lawyer Answers
TeAnna Rice
TeAnna Rice
  • Hillsboro, OR
  • Licensed in Oregon

A: Are they not paying your PTO for the day that you were sick, or are they not paying out the balance of your PTO upon your termination? If they are not allowing you to use your PTO for the day you were sick, you could have a wage claim for those missing wages, assuming you qualify under Oregon Sick Time Leave.

However, if they are not paying out your PTO upon your termination, whether you have a claim depends on what your employee handbook says for your situation. Paying out PTO at termination is not required under the law.

Gabriel A Watson agrees with this answer

1 user found this answer helpful

Gabriel A Watson
Gabriel A Watson
  • Portland, OR
  • Licensed in Oregon

A: TeAnna is completely right.

Employment Law is challenging in many ways that impact this answer--but a lot of this boils down to your employment contract/agreement/etc. Importantly, even though you may be an at-will employee or not have a document that says "Contract" or "Employment Contract" -- Courts in Oregon often accept an employee benefits manual as a binding agreement between an employer and employee. Other documents that could work for--or depending on what they say--against you, are a Union Contract, policies, and of course...certain statutes or federal rules that relate to leave. For example, an employer cannot discriminate against an employee for using 'protected leave' or for a 'perceived disability'--so even if parts of an agreement say the employer can...these rules would be illegal. This isn't always the case...but I've certainly seen a lot of contracts that are illegal on their face. It really depends on the employer. Bigger employees with legal departments or HR tend to have more 'legal' contracts than small companies or sole proprietorships...but this is not an absolute.

For example, many firefighters only get paid for a fraction of their accrued sick leave when they retire. Even though they'd be entitled to 100% if they had a qualified reason for using it before they retired. So, a lot of firefighters take sick leave to get a needed surgery before not after retirement and where the City tries to get in the way of this...they violate the law.

If they didn't pay you accrued leave for a single day that you were sick...they probably have violated a law or an agreement. But generally, PTO which covers all types of leave i.e. vacation, sick, etc. doesn't necessarily have to be paid at separation from employee.

However, if you used sick leave for a protected reason, and they have a policy that treats you different because of this...i.e. because you used protected leave...that could very well be 'retaliation' and give rise to a good claim. It's usually a very fact intensive analysis and depends on how it is framed as well as how creative your attorney is. No ethical attorney will bring a claim that isn't legitimate but some attorneys think more outside the box and take different routes to get at a 'legitimate' claim they can ethically bring.

The other question becomes how much are they withholding. If there is discrimination there could be other claims--but quite often if the amount they're not paying is nominal...even if you have a claim...it may not be financially worth pursuing. You wouldn't want to spend $5,000 on costs and fees to an attorney only to get $200 in damages.

Again, this is a fact intensive analysis. An attorney should be able to ask the questions that answer the questions that matter and then advise you on the specifics related to your situation.

Hope this helps.

2 users found this answer helpful

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.