Becnel v. Answer, Inc.

428 So. 2d 539
CourtLouisiana Court of Appeal
DecidedMarch 4, 1983
Docket13281
StatusPublished
Cited by9 cases

This text of 428 So. 2d 539 (Becnel v. Answer, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Becnel v. Answer, Inc., 428 So. 2d 539 (La. Ct. App. 1983).

Opinion

428 So.2d 539 (1983)

Michele Ann BECNEL
v.
ANSWER, INC., Its Successors or Assigns and/or Any Persons Doing Business as Answer, Inc.

No. 13281.

Court of Appeal of Louisiana, Fourth Circuit.

March 4, 1983.

*540 Trudy H. Oppenheim, New Orleans, for plaintiff-appellant.

Gary M. Hellman, Schafer & Schafer, New Orleans, for defendants-appellees.

Before GARRISON, AUGUSTINE, and CIACCIO, JJ.

AUGUSTINE, Judge.

Plaintiff, Michele Ann Becnel, sued her former employer, Answer, Inc., for unpaid vacation wages, as well as penalties and attorney fees, allegedly due under L.S.A.-R.S. 23:632[1] within three days after she was terminated.

Ms. Becnel began employment with Answer, Inc. (a branch of Answer of Iowa) as a telephone operator on May 23, 1978. She continued in their employ without incident until May of 1980, when she was terminated due to the loss of customers and the closing of the downtown New Orleans office. Ms. Becnel was notified of her termination in a letter dated May 14, 1980, signed by her supervisor and the vice-president of the company.

On May 19th, Ms. Becnel wrote a letter to John Lund, the vice-president, demanding "all wages due ... which includes: gross, net, etc." by May 21, 1980. In addition, the *541 letter indicated that if she was not paid within the 72 hour grace period provided by L.S.A.-R.S. 23:631, her attorney would thereafter handle the matter. The statute provides:

A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment....
B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section.

.....

On May 23rd, two days beyond the "grace" period, a check was issued to Ms. Becnel totalling $97.04 before deductions, representing regular pay for 29.30 hours worked during the pay period. No other demands were made until Ms. Becnel filed this suit on June 19, 1980, in which she specifically asked for unpaid vacation wages, penalties and attorney fees. Six months later, in December 1980, a check was issued to Ms. Becnel for two weeks vacation totalling $264.00 in gross pay. However, this check was not tendered to Ms. Becnel through her attorney until May, 1981.

After much delay, the trial in this matter was held on October 12, 1981. At that time the trial court findings were:

1. that the defendant paid the salary due within the delay allowed by law;
2. that there was a genuine dispute as to whether plaintiff was entitled to vacation pay;
3. that plaintiff was paid two days late and the court did "not feel that an actual delay of two days would entitle the plaintiff to penalties";
4. that the defendant was agreeable to discussing the matter with a view toward settlement but plaintiff (or her counsel) chose to proceed to trial for penalties and attorney fees;
5. that the plaintiff (or her counsel) sought punitive damages rather than reasonable damages and attorney fees; and the laws of our State do not permit the awarding of punitive damages.

In accordance with the trial court's findings, judgment was rendered in favor of the plaintiff against the defendant awarding $50.00 in penalties for late payment of vacation wages, and $250.00 in attorney fees plus costs. Plaintiff now appeals, alleging that the judgment is inadequate and inconsistent with the evidence, and seeks an increase in the amount of penalties and attorney fees.

Specifically, plaintiff argues that the trial court erred in finding there was a genuinely disputable question of plaintiff's entitlement to vacation wages. She also alleges that the evidence demonstrates bad faith on the part of the defendant in failing to pay her timely. And finally, plaintiff alleges that the trial court erred in its finding that the laws of the State do not permit the award of punitive damages.

I

Unpaid Vacation Benefits

All employees of Answer, Inc. received a handbook in which rules and policies were outlined. The vacation policy reads in part:

Full time employees (employee averaging at least 35 hours per week) are entitled to paid vacation as follows:
A. 1. Employee must work one year before any vacation is paid.
2. After one year and up to five years employment, two weeks paid.
3. After five years and up to fifteen years employment, three weeks paid.
4. After fifteen years employment, four weeks paid.
.....
C. Vacation pay may not be accumulated.

*542 The handbook further provides that the vacation period is from May 1 to October 31, during which only a limited number of employees may be given a vacation during any particular week. If an employee resigns or is dismissed for cause prior to or during vacation, the vacation earnings and other employee benefits will be forfeited.

Ms. Becnel testified that in her first year of employment she took a vacation. According to the policy, then, this was an unpaid vacation. In April 1980, during her second year of employment, Ms. Becnel notified her manager of her intention to schedule a vacation. She testified that although she made several requests for vacation during that time, no approval was ever given by her employer. After May 23, 1980, her vacation would have been forfeited. Ms. Becnel was terminated, however, before her requested two-weeks vacation had been approved. At the time she was terminated, her vacation time had not yet been forfeited under that clause in the policy which prohibits accumulated vacation. Clearly, Ms. Becnel made efforts to take her vacation and would have been entitled to do so had she not been terminated. The defendant admits that she was not terminated for cause, and therefore, that her benefits had not been forfeited under the terms of the policy.

Mr. Bridenstein, Secretary-Treasurer for Answer of Iowa, appeared for the defendant at trial. He testified that all payroll information is kept on a computer and a notation is made as to whether the pay is for regular, overtime, or vacation hours. When an individual takes a vacation, a time sheet is mailed to the main office designating vacation hours. Therefore, the company had at its disposal documentation which would have indicated whether or not plaintiff was entitled to a vacation or vacation pay.

L.S.A.-R.S. 23:631 provides that upon discharge or resignation of any laborer or other employee of any kind, it shall be the duty of the employer to pay the amount then due under the terms of employment. Berteau v. Wiener Corp., 362 So.2d 806 (La.App. 4th Cir.1978), is directly applicable to the present case. In Berteau, the plaintiff, after becoming eligible for one week of vacation under the terms of her employer's company handbook, and upon completion of one year of service, was terminated before taking her scheduled vacation. She thereupon requested her vacation pay, but it was denied.

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428 So. 2d 539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/becnel-v-answer-inc-lactapp-1983.