Recent Developments from Around the States

The employer sought to enforce non-compete agreements executed in 1986 and 1989 against three employees who argued that the agreements were entered with prior employers. Here there were various acquisitions of the corporate employer through stock purchases, not asset sales. Each corporate acquisition contemplated the assignment of the non-compete agreements; however, none of the non-compete agreements contained assignment clauses, even though one employee signed a consent to the assignment of the non-compete agreement. After the acquisitions, the corporation changed its name. In 2000, the three employees resigned and started working for a competitor in violation of the original non-compete agreement.

The Florida Supreme Court held the under a prior version of the Florida statute governing non-competes, Fla. Stat. Sec. 542.33 (1985), applicable to non-competes signed prior to July 1, 1996, neither the 100% purchase of the employing corporation's stock by another company, nor a corporate merger, would affect the enforceability of a non-compete agreement by the successor employer, even if there was no assignment clause in the non-compete. The Florida Supreme Court drew a distinction between this type of transaction, and an asset purchase. In an asset purchase, an assignment clause would be required for enforcement of the non-compete by assigns of the original employing entity.

The court expressed no opinion on construction of the present version of the Florida law governing non-competes. That current law is applicable to non-competes executed after July 1, 1996. The current statute, Fla. Stat. Sec. 542.335, contains a section expressly providing that in the absence of an assignment clause, a non-compete is not enforceable by 'a party's assignee or successor.'

GEORGIA

Sales Commission Earned But Not Payable Before Termination Is Forfeited

The Court of Appeals of Georgia has ruled that sales commissions due under two employment contracts must be earned and payable before termination of employment. Fernandes v. Manugistics Atlanta, Inc., 2003 WL 21058285 (Ga. Ct. App. May 13).

Rodney Fernandes sued his former employer, Manugistics Atlanta, Inc., for sales commissions allegedly earned but not paid prior to his mid-year departure from the company. Pursuant to two employment agreements, commissions were earned if certain sales quotas or milestones were reached. The commissions were not due on certain sales until 30 days after his employer received full payment from the customer or paid monthly over a term of a project. Moreover, the Manugistics CEO had discretion to adjust the commission payment if the sales did not produce the anticipated revenue. In addition, the employment agreements contained provisions that the employees' ability to earn commission and bonuses under a Compensation Plan terminated on the date the employees left the company.

The trial court found, and the appellate agreed, that commissions were earned when the sale was booked, but did not become payable until payment by the customer. Thus 'earned and payable' were two different concepts. The appellate court reaffirmed that while the law disfavors forfeiture clauses, they will be upheld when the language is clear, unmistakable and free from legal infirmity.

MARYLAND

No Wrongful Discharge Where Employee Intends to Seek Legal Advice

The Court of Appeals of Maryland has ruled that an employee who alleged that she was wrongfully discharged for indicating her intent to seek legal advice before responding to an unfavorable work evaluation did not state a claim for wrongful discharge. Porterfield v. Mascari II, Inc., 2003 WL 21026747 (Md. Ct. App. May 8).

Deborah Porterfield was employed as an administrative assistant by Home Instead Senior Care from December 1997 through August 1999. After receiving a written 'Employee Warning,' she informed her supervisors at Home Instead that she was advised to consult with an attorney before 'formally responding' to the warning. Her employment was terminated almost immediately thereafter. In response, she filed a complaint alleging wrongful discharge. The complaint was dismissed and Porterfield appealed. The Court of Special Appeals affirmed. The Maryland Court of Appeals granted certiorari to resolve the following question: Is it a violation of public policy sufficient to support a wrongful discharge action in Maryland when an employer fires an at-will employee for stating her intent to seek advice from legal counsel before responding to an adverse employment evaluation?

The Court of Appeals concluded that Maryland law does not recognize with sufficient particularity the general right characterized by Porterfield in her amended complaint, namely 'freely to consult with an attorney of [one's] choice concerning matters of importance in [one's] lives, including matters related to [one's] employment,' as a clear mandate of public policy sufficient to underlie a wrongful discharge action. The court further concluded that even if it were to recognize such a public policy, the facts alleged by Porterfield in her amended complaint would not offend that policy.

OHIO

Refusing Higher Paying Position Does Not Bar Workers' Compensation

The Supreme Court of Ohio has ruled that a workers' compensation wage-loss claimant did not unreasonably decline an offer of higher paying employment because of work restrictions. Timken Company v. Kovach, 2003 WL 21108280 (Oh. May 16).

Kovach suffered an industrial injury and received temporary total disability benefits. Thereafter, he returned to work at a lower paying janitorial position that could be performed within his medical restrictions while his employer paid the wage-loss compensation due. Kovach's union prohibited him from working temporary positions beyond a fixed period; thus, Timkin Company, his employer, eventually resumed paying him temporary total disability benefits until it made an oral offer to Kovach for a position that paid more than his job prior to the initial injury. However, this new job required lifting that would occasionally exceed Kovach's medical restrictions, although the employer stated he would be 'accommodated.' Kovach refused the offer, which resulted in permanent placement in the janitorial position and Timkin, because of the rejected offer, declined to pay further wage-loss compensation.

The court found that under Ohio law, the employer was required to pay the wage-loss compensation because 1) it failed to make a good-faith offer of suitable employment in writing, 2) the position was not within the medical restrictions imposed by claimant's physician, and 3) no evidence existed to show that an accommodation was promised when the offer was made. The court also wrote that it was not detrimental to the employee that he did not search elsewhere for a higher paying position because of the time he had invested with the employer, ie, his pension plan, additional vacation and personal days, and other benefits, because an equivalent compensation package could not be obtained elsewhere from another employer.

Employee Entitled to Earned Vacation Time Despite New Policy

The Ohio Court of Appeals has ruled that an employee was entitled to vacation pay accrued pursuant to an old employee handbook policy, not a new policy, even where the employee signed an acknowledgement indicating receipt of the new policy. Van Barg v. Dixon Ticonderoga Co., 2003 WL 21127795 (Ohio Ct. App. May 16).

Scott Van Barg sued his employer, Dixon Ticonderoga Co., asserting that Dixon failed to pay him for earned vacation time. Van Barg had worked for Dixon from 1980 until November 10, 2000. He sought payment from Dixon for 20 days' vacation accrued during 1999. Pursuant to Dixon's employee handbook, effective January 1, 1999, vacation time accrued based on the employee's length of service, and on the time worked during the preceding calendar year. The handbook also provided that 'vacations are not cumulative and normally must be taken in the vacation year immediately following the year in which they are accrued.'

In November 1999, Dixon changed its vacation policy, effective January 1, 2000, to require employees to take their vacation days during the same year in which they accrued. In July 2000, Van Barg signed a written acknowledgment that he had received the November 1999 revision. Upon Van Barg's resignation in 2000, relying on the November, 1999 policy revision, Dixon paid Van Barg for vacation time accrued during 2000, but refused to pay Van Barg for his 1999 vacation time.

The trial court awarded Van Barg $2512, finding that there was no evidence that the 1999 revision would divest Van Barg of his accrued 1999 vacation pay or that Van Barg was notified that he would be forfeiting his 1999 vacation pay by continuing his employment in 2000 under the terms of the 1999 vacation policy revision. On appeal, Dixon asserted that in an at-will employment relationship, the terms and conditions of employment could be prospectively changed without consideration. However, the appellate court determined that Dixon was attempting to apply the 1999 revision retrospectively, not prospectively. The appellate court affirmed the lower court, finding no lawful basis for Dixon to deprive Van Barg of the vacation days to which he was already entitled at the time the alleged policy change came into effect.

Recent Developments from Around the States was prepared by John P. Mc Adams, a partner in the labor and employment law group of Carlton Fields' Tampa, FL, office, and Leslie Schultz-Kin and Penelope A. Dixon, associates in that practice group.

Rodney Fernandes sued his former employer, Manugistics Atlanta, Inc., for sales commissions allegedly earned but not paid prior to his mid-year departure from the company. Pursuant to two employment agreements, commissions were earned if certain sales quotas or milestones were reached. The commissions were not due on certain sales until 30 days after his employer received full payment from the customer or paid monthly over a term of a project. Moreover, the Manugistics CEO had discretion to adjust the commission payment if the sales did not produce the anticipated revenue. In addition, the employment agreements contained provisions that the employees' ability to earn commission and bonuses under a Compensation Plan terminated on the date the employees left the company.

The trial court found, and the appellate agreed, that commissions were earned when the sale was booked, but did not become payable until payment by the customer. Thus 'earned and payable' were two different concepts. The appellate court reaffirmed that while the law disfavors forfeiture clauses, they will be upheld when the language is clear, unmistakable and free from legal infirmity.The Court of Appeals of Maryland has ruled that an employee who alleged that she was wrongfully discharged for indicating her intent to seek legal advice before responding to an unfavorable work evaluation did not state a claim for wrongful discharge. Porterfield v. Mascari II, Inc., 2003 WL 21026747 (Md. Ct. App. May 8).

Deborah Porterfield was employed as an administrative assistant by Home Instead Senior Care from December 1997 through August 1999. After receiving a written 'Employee Warning,' she informed her supervisors at Home Instead that she was advised to consult with an attorney before 'formally responding' to the warning. Her employment was terminated almost immediately thereafter. In response, she filed a complaint alleging wrongful discharge. The complaint was dismissed and Porterfield appealed. The Court of Special Appeals affirmed. The Maryland Court of Appeals granted certiorari to resolve the following question: Is it a violation of public policy sufficient to support a wrongful discharge action in Maryland when an employer fires an at-will employee for stating her intent to seek advice from legal counsel before responding to an adverse employment evaluation?

The Court of Appeals concluded that Maryland law does not recognize with sufficient particularity the general right characterized by Porterfield in her amended complaint, namely 'freely to consult with an attorney of [one's] choice concerning matters of importance in [one's] lives, including matters related to [one's] employment,' as a clear mandate of public policy sufficient to underlie a wrongful discharge action. The court further concluded that even if it were to recognize such a public policy, the facts alleged by Porterfield in her amended complaint would not offend that policy.The Supreme Court of Ohio has ruled that a workers' compensation wage-loss claimant did not unreasonably decline an offer of higher paying employment because of work restrictions. Timken Company v. Kovach, 2003 WL 21108280 (Oh. May 16).

Kovach suffered an industrial injury and received temporary total disability benefits. Thereafter, he returned to work at a lower paying janitorial position that could be performed within his medical restrictions while his employer paid the wage-loss compensation due. Kovach's union prohibited him from working temporary positions beyond a fixed period; thus, Timkin Company, his employer, eventually resumed paying him temporary total disability benefits until it made an oral offer to Kovach for a position that paid more than his job prior to the initial injury. However, this new job required lifting that would occasionally exceed Kovach's medical restrictions, although the employer stated he would be 'accommodated.' Kovach refused the offer, which resulted in permanent placement in the janitorial position and Timkin, because of the rejected offer, declined to pay further wage-loss compensation.

The court found that under Ohio law, the employer was required to pay the wage-loss compensation because 1) it failed to make a good-faith offer of suitable employment in writing, 2) the position was not within the medical restrictions imposed by claimant's physician, and 3) no evidence existed to show that an accommodation was promised when the offer was made. The court also wrote that it was not detrimental to the employee that he did not search elsewhere for a higher paying position because of the time he had invested with the employer, ie, his pension plan, additional vacation and personal days, and other benefits, because an equivalent compensation package could not be obtained elsewhere from another employer.The Ohio Court of Appeals has ruled that an employee was entitled to vacation pay accrued pursuant to an old employee handbook policy, not a new policy, even where the employee signed an acknowledgement indicating receipt of the new policy. Van Barg v. Dixon Ticonderoga Co., 2003 WL 21127795 (Ohio Ct. App. May 16).

Scott Van Barg sued his employer, Dixon Ticonderoga Co., asserting that Dixon failed to pay him for earned vacation time. Van Barg had worked for Dixon from 1980 until November 10, 2000. He sought payment from Dixon for 20 days' vacation accrued during 1999. Pursuant to Dixon's employee handbook, effective January 1, 1999, vacation time accrued based on the employee's length of service, and on the time worked during the preceding calendar year. The handbook also provided that 'vacations are not cumulative and normally must be taken in the vacation year immediately following the year in which they are accrued.'

In November 1999, Dixon changed its vacation policy, effective January 1, 2000, to require employees to take their vacation days during the same year in which they accrued. In July 2000, Van Barg signed a written acknowledgment that he had received the November 1999 revision. Upon Van Barg's resignation in 2000, relying on the November, 1999 policy revision, Dixon paid Van Barg for vacation time accrued during 2000, but refused to pay Van Barg for his 1999 vacation time.

The trial court awarded Van Barg $2512, finding that there was no evidence that the 1999 revision would divest Van Barg of his accrued 1999 vacation pay or that Van Barg was notified that he would be forfeiting his 1999 vacation pay by continuing his employment in 2000 under the terms of the 1999 vacation policy revision. On appeal, Dixon asserted that in an at-will employment relationship, the terms and conditions of employment could be prospectively changed without consideration. However, the appellate court determined that Dixon was attempting to apply the 1999 revision retrospectively, not prospectively. The appellate court affirmed the lower court, finding no lawful basis for Dixon to deprive Van Barg of the vacation days to which he was already entitled at the time the alleged policy change came into effect.

FLORIDA

Enforcement of Non-Competes By Successor Employers

The Supreme Court of Florida has ruled that a change in ownership of corporate stock or a name change does not affect the enforceability of a non-compete agreements entered prior to July 1, 1996, regardless of the existence of an assignment clause. Corporate Express Office Products, Inc. v. Phillips, 2003 WL 1883697 (Fla. Apr. 17).

The employer sought to enforce non-compete agreements executed in 1986 and 1989 against three employees who argued that the agreements were entered with prior employers. Here there were various acquisitions of the corporate employer through stock purchases, not asset sales. Each corporate acquisition contemplated the assignment of the non-compete agreements; however, none of the non-compete agreements contained assignment clauses, even though one employee signed a consent to the assignment of the non-compete agreement. After the acquisitions, the corporation changed its name. In 2000, the three employees resigned and started working for a competitor in violation of the original non-compete agreement.

The Florida Supreme Court held the under a prior version of the Florida statute governing non-competes, Fla. Stat. Sec. 542.33 (1985), applicable to non-competes signed prior to July 1, 1996, neither the 100% purchase of the employing corporation's stock by another company, nor a corporate merger, would affect the enforceability of a non-compete agreement by the successor employer, even if there was no assignment clause in the non-compete. The Florida Supreme Court drew a distinction between this type of transaction, and an asset purchase. In an asset purchase, an assignment clause would be required for enforcement of the non-compete by assigns of the original employing entity.

The court expressed no opinion on construction of the present version of the Florida law governing non-competes. That current law is applicable to non-competes executed after July 1, 1996. The current statute, Fla. Stat. Sec. 542.335, contains a section expressly providing that in the absence of an assignment clause, a non-compete is not enforceable by 'a party's assignee or successor.'

GEORGIA

Sales Commission Earned But Not Payable Before Termination Is Forfeited

The Court of Appeals of Georgia has ruled that sales commissions due under two employment contracts must be earned and payable before termination of employment. Fernandes v. Manugistics Atlanta, Inc., 2003 WL 21058285 (Ga. Ct. App. May 13).

Rodney Fernandes sued his former employer, Manugistics Atlanta, Inc., for sales commissions allegedly earned but not paid prior to his mid-year departure from the company. Pursuant to two employment agreements, commissions were earned if certain sales quotas or milestones were reached. The commissions were not due on certain sales until 30 days after his employer received full payment from the customer or paid monthly over a term of a project. Moreover, the Manugistics CEO had discretion to adjust the commission payment if the sales did not produce the anticipated revenue. In addition, the employment agreements contained provisions that the employees' ability to earn commission and bonuses under a Compensation Plan terminated on the date the employees left the company.

The trial court found, and the appellate agreed, that commissions were earned when the sale was booked, but did not become payable until payment by the customer. Thus 'earned and payable' were two different concepts. The appellate court reaffirmed that while the law disfavors forfeiture clauses, they will be upheld when the language is clear, unmistakable and free from legal infirmity.

MARYLAND

No Wrongful Discharge Where Employee Intends to Seek Legal Advice

The Court of Appeals of Maryland has ruled that an employee who alleged that she was wrongfully discharged for indicating her intent to seek legal advice before responding to an unfavorable work evaluation did not state a claim for wrongful discharge. Porterfield v. Mascari II, Inc., 2003 WL 21026747 (Md. Ct. App. May 8).

Deborah Porterfield was employed as an administrative assistant by Home Instead Senior Care from December 1997 through August 1999. After receiving a written 'Employee Warning,' she informed her supervisors at Home Instead that she was advised to consult with an attorney before 'formally responding' to the warning. Her employment was terminated almost immediately thereafter. In response, she filed a complaint alleging wrongful discharge. The complaint was dismissed and Porterfield appealed. The Court of Special Appeals affirmed. The Maryland Court of Appeals granted certiorari to resolve the following question: Is it a violation of public policy sufficient to support a wrongful discharge action in Maryland when an employer fires an at-will employee for stating her intent to seek advice from legal counsel before responding to an adverse employment evaluation?

The Court of Appeals concluded that Maryland law does not recognize with sufficient particularity the general right characterized by Porterfield in her amended complaint, namely 'freely to consult with an attorney of [one's] choice concerning matters of importance in [one's] lives, including matters related to [one's] employment,' as a clear mandate of public policy sufficient to underlie a wrongful discharge action. The court further concluded that even if it were to recognize such a public policy, the facts alleged by Porterfield in her amended complaint would not offend that policy.

OHIO

Refusing Higher Paying Position Does Not Bar Workers' Compensation

The Supreme Court of Ohio has ruled that a workers' compensation wage-loss claimant did not unreasonably decline an offer of higher paying employment because of work restrictions. Timken Company v. Kovach, 2003 WL 21108280 (Oh. May 16).

Kovach suffered an industrial injury and received temporary total disability benefits. Thereafter, he returned to work at a lower paying janitorial position that could be performed within his medical restrictions while his employer paid the wage-loss compensation due. Kovach's union prohibited him from working temporary positions beyond a fixed period; thus, Timkin Company, his employer, eventually resumed paying him temporary total disability benefits until it made an oral offer to Kovach for a position that paid more than his job prior to the initial injury. However, this new job required lifting that would occasionally exceed Kovach's medical restrictions, although the employer stated he would be 'accommodated.' Kovach refused the offer, which resulted in permanent placement in the janitorial position and Timkin, because of the rejected offer, declined to pay further wage-loss compensation.

The court found that under Ohio law, the employer was required to pay the wage-loss compensation because 1) it failed to make a good-faith offer of suitable employment in writing, 2) the position was not within the medical restrictions imposed by claimant's physician, and 3) no evidence existed to show that an accommodation was promised when the offer was made. The court also wrote that it was not detrimental to the employee that he did not search elsewhere for a higher paying position because of the time he had invested with the employer, ie, his pension plan, additional vacation and personal days, and other benefits, because an equivalent compensation package could not be obtained elsewhere from another employer.

Employee Entitled to Earned Vacation Time Despite New Policy

The Ohio Court of Appeals has ruled that an employee was entitled to vacation pay accrued pursuant to an old employee handbook policy, not a new policy, even where the employee signed an acknowledgement indicating receipt of the new policy. Van Barg v. Dixon Ticonderoga Co., 2003 WL 21127795 (Ohio Ct. App. May 16).

Scott Van Barg sued his employer, Dixon Ticonderoga Co., asserting that Dixon failed to pay him for earned vacation time. Van Barg had worked for Dixon from 1980 until November 10, 2000. He sought payment from Dixon for 20 days' vacation accrued during 1999. Pursuant to Dixon's employee handbook, effective January 1, 1999, vacation time accrued based on the employee's length of service, and on the time worked during the preceding calendar year. The handbook also provided that 'vacations are not cumulative and normally must be taken in the vacation year immediately following the year in which they are accrued.'

In November 1999, Dixon changed its vacation policy, effective January 1, 2000, to require employees to take their vacation days during the same year in which they accrued. In July 2000, Van Barg signed a written acknowledgment that he had received the November 1999 revision. Upon Van Barg's resignation in 2000, relying on the November, 1999 policy revision, Dixon paid Van Barg for vacation time accrued during 2000, but refused to pay Van Barg for his 1999 vacation time.

The trial court awarded Van Barg $2512, finding that there was no evidence that the 1999 revision would divest Van Barg of his accrued 1999 vacation pay or that Van Barg was notified that he would be forfeiting his 1999 vacation pay by continuing his employment in 2000 under the terms of the 1999 vacation policy revision. On appeal, Dixon asserted that in an at-will employment relationship, the terms and conditions of employment could be prospectively changed without consideration. However, the appellate court determined that Dixon was attempting to apply the 1999 revision retrospectively, not prospectively. The appellate court affirmed the lower court, finding no lawful basis for Dixon to deprive Van Barg of the vacation days to which he was already entitled at the time the alleged policy change came into effect.

Recent Developments from Around the States was prepared by John P. Mc Adams, a partner in the labor and employment law group of Carlton Fields' Tampa, FL, office, and Leslie Schultz-Kin and Penelope A. Dixon, associates in that practice group.

Rodney Fernandes sued his former employer, Manugistics Atlanta, Inc., for sales commissions allegedly earned but not paid prior to his mid-year departure from the company. Pursuant to two employment agreements, commissions were earned if certain sales quotas or milestones were reached. The commissions were not due on certain sales until 30 days after his employer received full payment from the customer or paid monthly over a term of a project. Moreover, the Manugistics CEO had discretion to adjust the commission payment if the sales did not produce the anticipated revenue. In addition, the employment agreements contained provisions that the employees' ability to earn commission and bonuses under a Compensation Plan terminated on the date the employees left the company.

The trial court found, and the appellate agreed, that commissions were earned when the sale was booked, but did not become payable until payment by the customer. Thus 'earned and payable' were two different concepts. The appellate court reaffirmed that while the law disfavors forfeiture clauses, they will be upheld when the language is clear, unmistakable and free from legal infirmity.The Court of Appeals of Maryland has ruled that an employee who alleged that she was wrongfully discharged for indicating her intent to seek legal advice before responding to an unfavorable work evaluation did not state a claim for wrongful discharge. Porterfield v. Mascari II, Inc., 2003 WL 21026747 (Md. Ct. App. May 8).

Deborah Porterfield was employed as an administrative assistant by Home Instead Senior Care from December 1997 through August 1999. After receiving a written 'Employee Warning,' she informed her supervisors at Home Instead that she was advised to consult with an attorney before 'formally responding' to the warning. Her employment was terminated almost immediately thereafter. In response, she filed a complaint alleging wrongful discharge. The complaint was dismissed and Porterfield appealed. The Court of Special Appeals affirmed. The Maryland Court of Appeals granted certiorari to resolve the following question: Is it a violation of public policy sufficient to support a wrongful discharge action in Maryland when an employer fires an at-will employee for stating her intent to seek advice from legal counsel before responding to an adverse employment evaluation?

The Court of Appeals concluded that Maryland law does not recognize with sufficient particularity the general right characterized by Porterfield in her amended complaint, namely 'freely to consult with an attorney of [one's] choice concerning matters of importance in [one's] lives, including matters related to [one's] employment,' as a clear mandate of public policy sufficient to underlie a wrongful discharge action. The court further concluded that even if it were to recognize such a public policy, the facts alleged by Porterfield in her amended complaint would not offend that policy.The Supreme Court of Ohio has ruled that a workers' compensation wage-loss claimant did not unreasonably decline an offer of higher paying employment because of work restrictions. Timken Company v. Kovach, 2003 WL 21108280 (Oh. May 16).

Kovach suffered an industrial injury and received temporary total disability benefits. Thereafter, he returned to work at a lower paying janitorial position that could be performed within his medical restrictions while his employer paid the wage-loss compensation due. Kovach's union prohibited him from working temporary positions beyond a fixed period; thus, Timkin Company, his employer, eventually resumed paying him temporary total disability benefits until it made an oral offer to Kovach for a position that paid more than his job prior to the initial injury. However, this new job required lifting that would occasionally exceed Kovach's medical restrictions, although the employer stated he would be 'accommodated.' Kovach refused the offer, which resulted in permanent placement in the janitorial position and Timkin, because of the rejected offer, declined to pay further wage-loss compensation.

The court found that under Ohio law, the employer was required to pay the wage-loss compensation because 1) it failed to make a good-faith offer of suitable employment in writing, 2) the position was not within the medical restrictions imposed by claimant's physician, and 3) no evidence existed to show that an accommodation was promised when the offer was made. The court also wrote that it was not detrimental to the employee that he did not search elsewhere for a higher paying position because of the time he had invested with the employer, ie, his pension plan, additional vacation and personal days, and other benefits, because an equivalent compensation package could not be obtained elsewhere from another employer.The Ohio Court of Appeals has ruled that an employee was entitled to vacation pay accrued pursuant to an old employee handbook policy, not a new policy, even where the employee signed an acknowledgement indicating receipt of the new policy. Van Barg v. Dixon Ticonderoga Co., 2003 WL 21127795 (Ohio Ct. App. May 16).

Scott Van Barg sued his employer, Dixon Ticonderoga Co., asserting that Dixon failed to pay him for earned vacation time. Van Barg had worked for Dixon from 1980 until November 10, 2000. He sought payment from Dixon for 20 days' vacation accrued during 1999. Pursuant to Dixon's employee handbook, effective January 1, 1999, vacation time accrued based on the employee's length of service, and on the time worked during the preceding calendar year. The handbook also provided that 'vacations are not cumulative and normally must be taken in the vacation year immediately following the year in which they are accrued.'

In November 1999, Dixon changed its vacation policy, effective January 1, 2000, to require employees to take their vacation days during the same year in which they accrued. In July 2000, Van Barg signed a written acknowledgment that he had received the November 1999 revision. Upon Van Barg's resignation in 2000, relying on the November, 1999 policy revision, Dixon paid Van Barg for vacation time accrued during 2000, but refused to pay Van Barg for his 1999 vacation time.

The trial court awarded Van Barg $2512, finding that there was no evidence that the 1999 revision would divest Van Barg of his accrued 1999 vacation pay or that Van Barg was notified that he would be forfeiting his 1999 vacation pay by continuing his employment in 2000 under the terms of the 1999 vacation policy revision. On appeal, Dixon asserted that in an at-will employment relationship, the terms and conditions of employment could be prospectively changed without consideration. However, the appellate court determined that Dixon was attempting to apply the 1999 revision retrospectively, not prospectively. The appellate court affirmed the lower court, finding no lawful basis for Dixon to deprive Van Barg of the vacation days to which he was already entitled at the time the alleged policy change came into effect.