# Dunlap v. Edison Credit Union, Inc. > Ohio Court of Appeals · March 12, 2010 · 186 Ohio App. 3d 370 URL: https://www.frixlaw.com/law-library/cases/6699441 ## Case - **Full name:** DUNLAP v. EDISON CREDIT UNION, INC. - **Court:** Ohio Court of Appeals - **Decided:** March 12, 2010 - **Citations:** 186 Ohio App. 3d 370; 928 N.E.2d 464 - **Precedential status:** Published - **Opinion:** Dissent by Fain - **Judges:** Donovan, Fain, Grady - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6699441 ## Opinion text Fain, Judge, dissenting. {¶ 36} I would reverse the judgment of the trial court and remand this cause for resolution, by the trial court, of the ambiguity in the provisions in the contract of employment between Dunlap and Edison Credit Union concerning the manner in which a retiring employee is to be compensated for accrued, but unused, vacation time. {¶ 37} Dunlap was employed by Edison Credit Union for over nine years. She was not performing services for Edison Credit Union for free. She had a contract of employment, albeit not primarily in writing, in which she performed the tasks assigned to her by her employer, and Edison Credit Union paid her for her work. {¶ 38} Dunlap was an at-will employee, and the Human Resource Policy Manual did not change that. She could resign at any time, without penalty, and Edison Credit Union could discharge her at any time, with or without cause. Because she was an at-will employee, Edison Credit Union could change the terms of her employment contract at any time, prospectively. It could tell her that it was not going to pay her as much for her services, for example, beginning either at the present moment, or at some time in the future. If that was not satisfactory to her, she could resign her employment. {¶ 39} Part of Dunlap’s compensation package was paid vacation time. She would be paid while she was on vacation, even though she was not working for Edison Credit Union during her vacation. There was provision for how she would be compensated for accrued, but unused, vacation time. This was part of the package of compensation for her services. Like everything else in her compensation package, the terms for compensating her for accrued, but unused, vacation time could be changed prospectively. But it could no more be changed retrospectively, without her consent, than any other part of the compensation package. {¶ 40} If, for example, the terms of Dunlap’s employment contract provided that she would be paid a salary at the rate of $4,000 per month, to be paid on the second Friday following the month, Edison Credit Union could not unilaterally decide, the day before payday, that it would pay her only $3,000 for the month that she had already worked. That is not a prospective change. Dunlap, in this example, would already have fully performed her obligations for that month, thereby earning the agreed compensation for her services for that month. *376 {¶ 41} Shepard v. Griffin Servs., Inc., Montgomery App. No. 19032, 2002-Ohio-2283 , 2002 WL 940110 , does not require a contrary result. In that case, an at-will employee was discharged and brought an action against the employer alleging, among other things, that she had an implied contract with the employer, in the form of an employee manual and various oral comments that had been made to her, that she could not be discharged without good cause. We cited that part of the employee manual that expressly provided for at-will employment: {¶ 42} “Employment with the Company is entered into voluntarily, and employees are free to resign at any time. Similarly, Griffin Services Inc. is free to conclude the employment relationship at any time. Neither this Policy and Procedure Manual, nor any other document or publication made available by the Company establishes a contract of employment between an employee and the Company. No person, other than a Corporate Officer, has authority to enter into any agreement, oral or written, for employment for any specified period of time or to make any agreement contrary to the foregoing.” (Emphasis added.) {¶ 43} The issue in Shepard was whether the employee in that case was an at-will employee, meaning that she could be discharged at any time, with or without good cause. We held that she was. {¶ 44} In the case before us, Dunlap’s status as an at-will employee is not at issue. She is not claiming that she could only have been discharged for good cause. She just wants to receive the compensation that the Edison Credit Union agreed to pay her for the services that she had already performed when she retired. Part of that compensation is accrued, but unused, vacation time. At the oral argument of this appeal, Edison Credit Union conceded that she is entitled to compensation for accrued, but unused, vacation time. Its only issue with Dunlap concerns the proper interpretation of the provision in the Human Resources Policy Manual governing that compensation. {¶45} Because Dunlap is plainly an at-will employee, the provisions' in the Human Resources Policy Manual governing compensation for her future services can be unilaterally changed by the company at any time. But Edison Credit Union conceded at the argument of this appeal that the provisions governing compensation for Dunlap’s past services, already completely performed by her, may not be changed, at least not without her consent. And this includes provisions in an employee handbook for payment for an at-will employee’s vacation time accrued before a unilateral change by the employer of the vacation policy. Van Barg v. Dixon Ticonderoga Co., 152 Ohio App.3d 668 , 2003-Ohio-2531 , 789 N.E.2d 727, ¶ 9 . {¶ 46} I would reverse the judgment of the trial court and remand this cause for construction of the provision governing compensation for accrued, but unused, *377 vacation time, which I find to be ambiguous. The trial court never reached that issue. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6699441. Public record. Not legal advice.