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December 24, 2010

Payment for unused leave credits upon resignation or separation from employment

Payment for unused leave credits upon resignation or separation from employment
Gratto Ausable v Valley CSD. 271 AD2d 175

The Gratto case explores the obligation of the employer to pay an individual for his or her unused vacation credits upon his or her involuntary termination. The general rule set out by the Appellate Division, Third Department in dealing with claims for such payment: use it or lose it!

Ausable Valley CSD Superintendent John Gratto’s employment contract with the school district provided that Gratto was to receive 25 paid vacation days a year, subject to a maximum accumulation of 45 days of vacation credit. The contract, however, was silent with respect to making a cash payment for any unused vacation time upon the termination of Gratto’s employment.

When Gratto was involuntarily terminated from his position he claimed that he was entitled to payment for his unused vacation credits upon his separation as he had earned it. The district disagreed and refused to pay him for his unused leave credits.

The absence of a statement providing for the cash liquidation of leave credits proved to be one of a number of critical elements in the Appellate Division’s resolution of his appeal from a Supreme Court judge’s summarily dismissing his complaint.

The Appellate Division said that “[i]n the absence of a statutory or contractual basis for recovery, a public employee may not recover the monetary value of unused vacation time that has accrued as of the date of termination.”

Gratto attempted to avoid this general rule by contending that a public employee who is involuntarily terminated, is constitutionally entitled to receive the cash value of unused vacation days, citing a Fourth Department decision, Clift v City of Syracuse, 45 AD2d 596 in support of his theory.

In Clift, the Appellate Division, Fourth Department. said that if the employer discharges an employee without having either given him the opportunity to use the vacation he has earned, or in the alternative, compensating him with its monetary value, it transgresses the due process requirements of both the New York State and United States Constitutions and it should not be permitted to do so.

The Third Department, however, decided that Clift has never been interpreted as meaning that a public employee who is involuntarily discharged is automatically entitled to a cash payment for his or her unused vacation. Rather, it viewed the holding as applying only where there are circumstances requiring special considerations.*

The Appellate Division rejected Gratto’s claim that his work responsibilities prevented him from using all of his leave credits for vacations. What was missing in Gratto’s situation? Evidence that a superior or supervisor induced him to forego any vacation time during that year for any reason or that he refrained from using vacation time the entire year because of noncontractual duties.

The Appellate Division affirmed the lower court’s ruling, holding that under the circumstances, Gratto was not entitled to the cash value of his 45 days of unused vacation when he was involuntarily separated.

This is similar to the general rule with respect to State workers subject to the State Civil Service Commission’s Attendance Rules for the Classified Service, 4 NYCRR 30.1. Section 30.1 states that an employee who is removed from State service as a result of disciplinary action, or who resigns after charges of incompetency or misconduct have been served, is not entitled to compensation for vacation credits.

What about a voluntary separation, i.e., the State employee is not involved in a disciplinary action when he or she resigns or retires? Section 30.1 provides that an appointing authority may require, as a condition for such payment that it be given at least two weeks notice prior to the last day of work.

* The special circumstances in Clift: the employee contended that he agreed to defer using his vacation credits based on promises made by his superior and was then involuntarily dismissed. Similarly in May v Ballston Spa CSD, 170 AD2D 920, the Third Department ruled in favor of the employee upon its finding that the employee was induced to forego vacation when his superiors assured him that he would be paid for his unused leave notwithstanding his involuntary separation as a result of a layoff.

Public Personnel Law E-books

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on http://booklocker.com/books/5215.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on

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The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html


General Municipal Law §§207-a and 207-c - Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on

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