Can You Get Payment for Unused Days Off When You Quit

If you’re thinking about quitting your job or fear that your boss may fire you, you probably have a lot of things to worry about, including your unused days off. Maybe you fear about your future, how you will announce your leave, salary in-between jobs, but also about the unused vacation days. There is no federal law that requires employers to pay out unused vacation time. The Fair Labor Standards Act (FLSA) that sets the regulations for overtime and wages, doesn’t mandate any payment for your unused vacation time. This doesn’t mean that you’re losing the value of your increased time.

If you’ve been fired, quit or laid off, and you suspect that your employee won’t pay you the vacation time, schedule a consultation with a New Mexico employment law attorney.

New Mexico Vacation Leave

New Mexico has no law or policy regarding unused vacation time. In New Mexico, an employer doesn’t have to provide employees with vacation benefits (paid or unpaid). If your employer provides such benefits, it should comply with the terms of the established policy or employment contract.

Here is some silent guidance regarding potential vacation policy problems. New Mexico’s Legislature or the courts don’t have any significant guidance on whether an employer may set a policy and enter into a contract where they can deny the employees payments for their vacation leave after quitting or firing. New Mexico Legislature or the courts don’t say clearly whether the employer can deny the payment for an accrued vacation to an employee after separation if its policy or contract doesn’t say anything about the matter.

Also, the employer may require the employee to comply with certain requirements to qualify for vacation leave after they separate from employment. This could come in the form of two week’s notice of being employed as of a certain date of the year. The employer may implement the ‘use-it-or-lose-it policy that requires the employees to use their leave by a certain date or lose the unused days off.

New Mexico’s authorities aren’t vocal about many vacation policy problems. The state has placed on vacation policies and an employer is free to implement the vacation policy of its choosing. They would be expected to comply with the terms of their policy or contract.


New Mexico law doesn’t require private employers to give their employees paid or unpaid holiday leave. A private employer can ask an employee to work holidays. A private employer isn’t required to pay an employee premium pay (like 1½ times the regular rate), for working on holidays, unless such time worked qualifies the employee for overtime under standard overtime laws. If an employer chooses to pay or not pay a holiday leave, it must comply with the terms of the company’s established policy or employment contract.

Why the FLSA Doesn’t Order Payment for Unused Vacation Time

The FLSA sets out standards for minimum wage and overtime and regulates how the work time is recorded. The Act doesn’t expect employees to pay workers for the time they didn’t work and this includes sick time, holidays and vacation time. Employees aren’t legally required to give the workers paid time off. If the employee offers a paid time off, they can decide whether to pay it out at the end of the worker’s tenure with the company, or not pay it at all.

There are exceptions at the federal level. For instance, some construction workers that have signed federal government contracts may be covered by the Davis-Bacon and Related Acts (DBRA) and are entitled to vacation pay.

Company Policy May Offer Payment for Unused Days Off for Vacation

If you are about to leave your current job (because you quit or got fired), your employer isn’t legally required to pay out your unused days off for vacation, but they may decide to do that. Your employer has to keep a good reputation among future potential workers and among the ones that stay to work for them. Even though New Mexico doesn’t regulate whether the employee should or should not pay for unused vacation time, most private-sector companies will pay.

In case your employee decides that they won’t pay the unused vacation time, you might think that you can’t do anything legally about it. Still, don’t just leave things unanswered. Call an attorney who has worked on similar cases and ask them if you can seek your payment.

Our team at FBD Law is here to help you with your case. Schedule your first consultation with our team today.

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