An employee was given advanced pay for PTO that has not been earned. She is now having disciplinary issues. I would like to know how to best handle getting that advance back in the event that she is terminated, when and how much can I request?

She is a new employee and speaks rudely to her supervisors. When she first
started back in the fall 0f 2017, she asked for a pay advance – I believe it was
in the first month of her employment. We paid her an advancement of 3 PTO
days that still have not been earned, that’s 18 hours of unearned pay. What
can I legally do to get her to repay her debt?

Asked on March 16, 2018 under Employment Labor Law, Illinois

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

You can recover the advance pay IF at the time, it was made clear to her (either to her specifically, or in an employee handbook which she received) that if an employee leaves employment before having earned out PTO advanced to her, the employee will have to repay the value of the PTO. Further, if it was made clear to her in writing (again, either to her specifically or in the employee handbook) that in the event an employee leaves employment owing PTO, it can be taken out of his or her final paycheck, you could recover it that way (otherwise, without specific notice of that option, you could not withhold it but rather would have sue for it). 
The key is, there must have been advance agreement or consent by her to repay (and to repay by a paycheck deduction, if you want to reclaim it that way). That agreement can be imputed from her having taken the advance with knowledge of the policy: doing something when you know the rules means agreeing to those rules. But there MUST have been advance notice of the policy and consequences: without advance notice, if you just let her have the PTO, she does not have to repay it--since she did not agree to its repayment, you simply gave it to her.


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