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Determining the amount to be paid for unused vacation upon separation controlled by terms of the contract of employment

Determining the amount to be paid for unused vacation upon separation controlled by terms of the contract of employment
Appeal of Michael J. Ouimet from action of the Board of Education of the City School District of the City of Troy, Commissioner of Education decision No. 15,843

Michael J. Ouimet?s employment contract as an assistant superintendent for business and support service with the Troy City School District provided for the payment of unused vacation at the time of his separation, up to the maximum allowable per year. This was to be based on his daily rate of pay, equal to his base salary divided by 260, for each day of such accumulated by unused vacation.

When Ouimet left the District?s employ he advise the superintendent that he believed he had been underpaid in the amount of $862.50 for the 131 days he had worked. Ouimet based his calculation on a 240-day year rather than a 260-day year. The District disagreed, stating that the amount it had paid to Ouimet based on a daily rate determined on the basis of 260 workdays per year was correct.

Complaining that the District?s practice of calculating salary entitlement is inconsistent with Education Law §3101 and the guidance on prorating salaries provided by the New York State Education Department, Ouimet appealed the District?s determination to the Commissioner.

The Commissioner said that Education Law §3101(3) provides that for purposes of prorating the salary of a teacher (defined to include associate or other superintendents) serving for less than the 10-month school year, the monthly rate for services rendered shall be at least 1/10 of the salary and the daily rate at least 1/200 of the salary. If any teacher is required to serve beyond 10 months, compensation for additional services shall be at least the monthly or daily rate used in prorating the salary.

The Commissioner ruled that the standard set forth in Education Law §3101 did not apply to Ouimet. In the words of the Commissioner, ?Unlike employees employed pursuant to a union agreement for 10 months, [Ouimet], an assistant superintendent, was a full-time employee, employed pursuant to a contract between himself and [the School District] for a period of 52 weeks per year (260 days less any vacation time which he uses with pay). Education Law §3101 was intended to address irregularities that arise from those employed for less than a full year. [Ouimet] does not fall within this category.?

In addition, the Commissioner pointed out that Ouimet?s employment contract provides that he should be reimbursed for each day of unused, earned vacation leave (up to a maximum of 10 days of earned vacation per year) - at his ?daily rate of pay, present base salary divided by 260.? The Commissioner said that ?It would be incongruous to use two different methodologies to calculate [Ouimet?s] ?daily rate of pay,? one for unused vacation days (present base salary divided by 260) and another for a day of work (present base salary divided by 240) and dismissed Ouimet?s appeal.

The full text of the Commissioner?s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume48/d15843.htm

Full post as published by New York Public Personnel Law on November 04, 2008 (boomark / email).