Can my wife’s employer collect overpaid PTO at a higher rate than she received when she leaves the job?

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Can my wife’s employer collect overpaid PTO at a higher rate than she received when she leaves the job?

My wife has been at her company for 5 years. We had a baby at the end of last year, and after her maternity leave was up, she took an extra 2 weeks vacation time until we had child care set up. Last week my wife was offered a new job at a competitor for a much higher pay rate and better benefits. As she had been at her current work so long, she told them immediately so they could plan for her leaving at the end of next month. They told her that she needed to pay back 50 hours of the PTO she used back when our child was born. No problem there, we expected this to happen. Here is the issue we are having, when she used the PTO, she was making $16 an hour. As of 2 weeks ago a week before she got the new job offer She got a raise to $17.50. Now they are telling her she has 2 options: pay back all 50 hours in the next

paycheck at $16 an hour or pay the 50 over the next 3 pay periods 20, 20 and then 10 but it would be at the new rate of $17.50. I am pretty mad about this. Can they legally take back more money than they paid out? Are they just being jerks about it because she is leaving? Do we have any legal ground if she tries to argue the second option and they let her go earlier than her notice? Option 1 is going to hurt because we live paycheck to paycheck and only having 30 hours for 2 weeks is a big deal. However, the idea of paying them back more than

they paid us is also very frustrating.

Asked on July 18, 2016 under Employment Labor Law, Massachusetts

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Whenever there is payment of, for, or about PTO--whether that is payment to the employee of accrued but unused vacation days, or repayment by the employee of "borrowed" (not then earned) PTO, on termination of employment--it is paid at the *current* rate. That for example, is why police officers or teachers, when they retire and are paid out for unused PTO, are typically paid that current (highest) salary, not at the salary they had when those days were earned. So in this case, your wife would have to repay at her current rate.
Bear in mind that the employer does NOT need to let your wife work out her notice period: they can treat her notice as effective immediately and/or otherwise terminate her early; while they are less likely to do this if they are happy with her, they'd have the right to let her go early even if she does repay at the higher rate; there is no way to guaranty her exit date.


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