Petition for Writ of Certiorari — Gennady Y. Paremsky, Petitioner v. Ingham County Medical Care Facility, et al.

Supreme Court briefMar 26, 2023

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No. 23- ___________

_________________________________________________

In the

Supreme Court of the United States

_____________________

Gennady Y. Paremsky,

Petitioner/Employee,

Ingham County Medical Care Facility,

Respondent/Employer,

Wage And Hour Division,

Respondent/State Agency.

___________________

On Petition For a Writ Of Certiorari To The

Michigan Supreme Court

________________________________________

PETITION FOR A WRIT OF CERTIORARI

_______________________________________

Elena A. Paremsky (MI P62996)

Counsel Of Record

993 Bray Road

Williamston, Michigan 48895

email: eparemsky@hotmail.com

Tel. 517-575-7123

Attorney for Petitioner

QUESTIONS PRESENTED

I. Did the Michigan State Administrative Agency

Wage and Hour Division ("WHD"), as upheld by the

Michigan Supreme Court, violate the U.S.

Constitution Contract Clause,1 when it used the

Michigan P.W.F.B.A statute2 to relieve RespondentEmployer of his obligations to pay PetitionerEmployee his paid-time-off (PTO) compensation of

$26,241.63, which Petitioner has already earned and

not forfeited according to his PTO agreement with

Employer, based on its written policies, while the

U.S. Supreme Court3, federal statutes, federal circuit

courts, and other states' highest courts held that

accrued vacation with pay/ paid time off is

compensation like wages - once earned, is due and

payable at termination, if not paid during

employment?

II. Did the Michigan State WHD, as upheld by

the Michigan Supreme Court, violate Petitioner's

rights of due process guaranteed by the U.S.

Constitution4 when it refused to apply its mandatory

adjudication standards to the Petitioner's claim,

which resulted in non-payment of his already earned

and contractually promised PTO compensation of

$26,241.63, while adherence to the "proper

standards" is a mandatory due process requirement

for administrative agencies performing quasi-judicial

U.S. CONST. art. I, § 10

Michigan Payment of Wages and Fringe Benefits Act 390 of 1978,

M.C.L. 408.471 et seq.

Massachusetts v. Morash, 490 U.S. 107, 120 S.Ct. 1668, 104

L.Ed.2d 98 (1989)

U.S. Const., amend. XIV

functions to ensure "fair play,"5 and while following

the mandatory adjudication standards would have

resulted in requiring pay of such already earned

compensation to Petitioner?

III. Did the Michigan State WHD Agency, as

upheld by the Michigan Supreme Court, violate

Petitioner's rights of equal protection guaranteed by

the U.S. Constitution,6 when it refused to require

Respondent-Employer to pay Petitioner his already

earned PTO compensation of $26,241.63, while WHD

required other employers to pay such compensation

to similarly situated claimants?

IV. Did the Michigan State WHD Agency's

decision based on its application of the Michigan

P.W.F.B.A. statute, which denied Petitioner his

already earned compensation as upheld by the

Michigan Supreme Court, enable RespondentEmployer's theft of Petitioner-Employee's earnings of

$26,241.63 and Respondent-Employer's tax evasion

scheme by which it failed to report such earnings and

pay $4,014.96 FICA taxes on them, which resulted in

Respondent ICMCF's violations of not only state

laws, but also federal laws of Social Security, IRS,

and the RICO7 Act?

Morgan v. United States, 304 U.S. 1, 22, 58 S.Ct. 773, 778, 82

L. Ed. 1129, 1134 (1938)

U.S. Const., amend. V, XIV

Racketeer Influenced and Corrupt Organizations Act, 18

U.S.C. 96

iii

PARTIES TO THE PROCEEDINGS

Petitioner Gennady Y. Paremsky, was ClaimantPetitioner-Appellant in the courts below and a

former employee of Respondent Ingham County

Medical Care Facility (ICMCF).

Respondent Ingham County Medical Care Facility is

a former employer of Petitioner.

Respondent Wage and Hour Division is a department

of the State of Michigan, which adjudicates

employees' claims for their unpaid earnings under

the Michigan Payment of Wage and Fringe Benefits

Act 390 of 1978, M.C.L. 408.471, et seq..

CORPORATE DISCLOSURE

Petitioner is an individual and is not a subsidiary or

affiliate of a publically owned corporation.

RELATED PROCEEDINGS

Paremsky v. ICMCF, No. 21-000505-AA, Ingham

County Circuit Court. Order entered January 25,

2022.

Paremsky v. ICMCF, No. 360482, Michigan Court of

Appeals. Order entered September 6, 2022.

Paremsky v. ICMCF, No. 164863, Michigan Supreme

Court. Order entered January 4, 2023.

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................................... i

PARTIES TO THE PROCEEDINGS ....................... iii

CORPORATE DISCLOSURE STATEMENT ......... iii

RELATED PROCEEDINGS .................................... iii

TABLE OF CONTENTS .......................................... iv

APPENDIX, Table of Contents ................................ v

INDEX OF AUTHORITIES .................................... vii

PETITION FOR A WRIT OF CERTIORARI ............ 1

OPINIONS BELOW ................................................... 1

JURISDICTION ........................................................ 2

CONSTITUTIONAL PROVISIONS INVOVLED .... 2

STATEMENT OF THE CASE ................................... 3

I. Respondent-Employer Refused To Pay Petitioner

His Already Earned PTO Compensation

Of $26,241.63 ........................................................ 3

II. WHD/ALJ, As Affirmed By Michigan Courts,

Used the P.W.F.B.A. Statute To Relieve

Respondent-Employer Of Its Contractual PTO

Obligations........................................................... 4

GROUNDS FOR GRANTING THE WRIT ............... 6

I. The Michigan Statute, P.W.F.B.A. As Applied In

This Case, Is Repugnant To the U.S. Constitution

And Laws of the United States ............................ 7

A. Application of the MI Statute P.W.F.B.A.

Violated Petitioner's Substantive Due

Process Rights .............................................. 7

B. Application of the MI Statute P.W.F.B.A.

Violated Petitioner's Equal Protection

Rights ............................................................. 9

C. Application of the MI Statute P.W.F.B.A.

Violated the Contract Clause Of the United

States Constitution ..................................... 14

D. Application Of the MI Statute P.W.F.B.A.

Conflicts With Laws Of the United States

Which State That Earned Vacation With Pay

Is Wages, Due Once Earned ....................... 16

1. Federal Statutes Expressly Define

Vacation With Pay As Wages, Due Once

Earned ...................................................... 16

2. U.S. Federal Courts Define Vacation With

Pay As Wages, Due Once Earned ........... 17

3. The Michigan Statute P.W.F.B.A. Was

Used To Enable ICMCF's Tax Evasion

Scheme, And Violations Of Federal Social

Security, IRS Laws, And RICO Act ......... 21

II. Highest State Courts Define Vacation With Pay

As Wages/ Earned Compensation, Due Once

Earned, As Codified By Most States ................ 22

CONCLUSION ......................................................... 36

CERTIFICATE OF WORD COUNT ....................... 38

APPENDIX (Separate Volume, Enclosed)

Appendix Table of Contents

Michigan Supreme Court's Denial of Petitioner's

Application for Leave to Appeal ....................1a

Michigan COA Denial of Petitioner's Application for

Leave To Appeal ............................................ 3a

Decision of the 30th Circuit Court (Jan. 25, 2022) . 4a

Wage and Hour Div./ALJ 6-02-21 Decision .......... 18a

WHD 3-23-2021 Amended Findings Letter ...... 21a

Petitioner's Two Last Paystubs Showing 582.5

earned PTO hours before his termination

on 10-05-20, Exhibits A and B to Petition

to MOAHR ................................................... 28a

Petitioner's Written Agreement With Administrator

For Additional 80 earned PTO hours before

his termination On 10-05-20, Exhibit C to

Petition to MOAHR .................................. 30a

Excerpts from the 2005-2019 Employee Handbooks

Regarding PTO Payout At Separation,

Exhibit D to Petition to MOAHR ............ 31a

2003 Plan For Confidential Employees (Same PTO

Policy Terms As In 2018 Plan For

Management), Exhibit A To Employer's

Response to Employee's MSJ before

MOAHR ....................................................... 32a

2018 Compensation Plan Written PTO Terms,

Exhibit E to Petition to MOAHR ................ 34a

Administrator's Email Affirming that Any Adverse

Conditions In 2018 Plan Would Not Apply to

Employees Hired prior to 2018, Exhibit F to

Petitioner's Petition to MOAHR ................. 36a

Statement of Susan O'Shea, an Author of the

Written Policy Contained in 2003/2018

Compensation Plans, Exhibit 1 to the

Petitioner's Motion for Reconsideration in

the Circuit Court ........................................ 37a

vii

INDEX OF AUTHORITIES

United States Constitution

U.S. CONST. art. I, § 10 ............................... i, 2, 14, 16

U.S. CONST. art. VI, cl. 2 ............................................ 2

U.S. CONST. amend. V ........................................ ii, 2, 9

U.S. CONST. amend. XIV ............................ i, ii, 2, 7, 9

United States Supreme Court Cases

Massachusetts v. Morash, 490 U.S. 107, S.Ct. 1668,

104 L.Ed.2d 98 (1989) .............. i, 17, 18, 33, 36

Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773,

82 L. Ed. 1129 (1938) .................................. i, 8

Willowbrook v Olech, 528 U.S. 562, 120 S. Ct. 1073;

145 L. Ed. 2d 1060 (2000) ............................... 9

Federal Circuit Cases

1st Circuit

Doctors Hosp., Inc. v. Vilar, 45 F.3d 423 (1st Cir.

1995) ............................................................... 18

2nd Circuit

In re Wil-Low Cafeterias, 111 F.2d 429

(2d Cir. 1940) ................................................. 18

Royal Crown Day Care LLC v. Dep't of Health &

Mental Hygiene of the City of N.Y., 746 F.3d

538, 545 (2d Cir. 2014) .................................... 8

3rd Circuit

In re Public Ledger, 161 F.2d 762 (3rd Cir. 1947) .. 18

4th Circuit

Matson v. Alarcon, 651 F.3d 404,

55 Bankr.Ct.Dec. 23, Employee Benefits Cas.

2574, 17 Wage & Hour Cas.2d (BNA) 1713

(4th Cir. 2011) ............................................... 19

viii

5th Circuit

United States v. Munro-Van Helms Company,

243 F.2d 10, 39 LRRM 2598 (5th Cir. 1957). 19

6th Circuit

Circuit in Hire v. E. I. DuPont De Nemours &

Company, 324 F.2d 546 (6th Cir. 1963) ....... 19

Ercegovich v Goodyear Tire & Rubber Co,

154 F.3d 344, 352 (6th Cir., 1998) ................. 9

International Ass'n of Machinists and Aerospace

Workers, Local Lodge 2369 v Oxco Brush Div.

of Vistron Corp, 517 F.2d 239

(6th Cir. 1975) ............................................... 15

Nierotko v. Social Security Board, 149 F.2d 273

(6th Cir. 1945); 327 U.S. 358, 66 S.Ct. 637, 90

L.Ed. 718 (1946), affirmed ............................ 19

Pearson v. City of Grand Blanc, 961 F.2d 1211

(6th Cir. 1992) ................................................. 8

Smith v. Kingsport Press, Inc., 366 F.2d 416, 419

(6th Cir. 1966) ............................................... 19

7th Circuit

Northwest Engineering Co., Matter of, 863 F.2d 1313

(7th Cir. 1988) ............................................... 19

8th Circuit

Teamsters Local Union 688 v. John J. Meier Co.,

718 F.2d 286 (8th Cir. 1983) ......................... 20

9th Circuit

In re EV Moore of California, Inc., 447 F.2d 1106

(9th Cir. 1971) ............................................... 20

10th Circuit

Weir v. Anaconda Co., 773 F.2d 1073

(10th Cir. 1985) ............................................. 20

11th Circuit

Munoz v. Oceanside Resorts Inc., 223 F.3d 1340,

(11th Cir. 2000) ............................................ 20

DC Circuit

Allied Industrial Wkrs., AFL-CIO Loc. U. No. 289 v.

NLRB, 155 U.S.App.D.C. 112, 476 F.2d 868

(D.C. Cir. 1973) .............................................. 20

Tribal Circuit

Louis-Williams v. Colville Confederated Tribes,

14 CCAR 35, 7 CTCR 29 (Colville

Confederated Tribes Ct. of App. 2019) ......... 20

Federal Circuit

Barger v. Office of Personnel Management, 9 F.3d 978

(Fed. Cir. 1993) ............................................ 21

United States Code

11 U.S.C. Sec. 507(a) .......................................... 17, 19

18 U.S.C. 96 ............................................................... ii

18 U.S.C. § 1341 ....................................................... 21

18 U.S.C. § 1342 ....................................................... 21

18 U.S.C. §1961(1) .................................................... 21

18 U.S.C. §1962(c) .................................................... 21

28 U.S.C. §1257(a) .............................................. 2, 6-7

29 U.S.C. §621-634 ................................................... 20

29 U.S.C. 1001 .......................................................... 17

Code of Federal Regulations

20 C.F.R. §404.1044 ................................................. 16

26 C.F.R. 31.3121(a)-1(g), (i) .................................... 17

26 C.F.R. § 601.401(a) .............................................. 21

29 C.F.R. § 1620.10 .................................................. 16

29 C.F.R. § 2510.3-1(b)(3) ........................................ 17

United States Supreme Court Rules

U.S. Sup.Ct.R.10 ........................................................ 6

State Supreme Courts Cases

Alabama

Amoco Fabrics v. Hilson et al., 669 So. 2d 832

(Ala. 1995) ...................................................... 23

Alaska

Pyramid Printing v. Com'n for Human Rights,

153 P.3d 994, 1000 (Alaska 2007) ................ 23

Arizona

Abrams v. Horizon Corp., 137 Ariz. 73, 669 P.2d 51

(1983) ............................................................. 23

Schade v. Diethrich, 158 Ariz. 1, 760 P.2d 1050

(1988) ............................................................. 23

Arkansas

Oil Fields Corp. v. Hess, 186 Ark. 241, 53 S.W.2d 444

(1932) ............................................................. 23

California

Suastez v. Plastic Dress-Up Co., 31 Cal.3d 774,

183 Cal.Rptr. 846, 647 P.2d 122 (1982) ....... 24

Colorado

Hartman v. Freedman, 197 Colo. 275, 591 P.2d 1318

(1979) ............................................................. 25

Nieto v. Clark's Mkt., Inc., 2021 CO 48, 488 P.3d

1140 (2021) .................................................... 24

The Marriage Of Marta Doris Cardona v. Castro,

214 CO 3, 316 P.3d 626 (2014) ..................... 24

District of Columbia

Gordon v. District Unemployment Comp. Bd.,

402 A.2d 1251 (D.C. 1979) ............................ 25

NRA v. Ailes, 428 A.2d 816 (D.C. App. 1981) ......... 25

Florida

In re Amendments to Fla. Family Law Rules

Procedure, 214 So.3d 400, 505 (Mem)

(Fla. 2017) ...................................................... 25

Hawaii

State v. Demello, 136 Hawai'i 193, 361 P.3d 420

(2015) ............................................................. 25

Idaho

Schoonover v. Bonner County, 113 Idaho 916,

750 P.2d 95 (1988) ......................................... 25

Illinois

Abrell v. Abrell, 923 N.E.2d 791, 236 Ill.2d 249,

337 Ill.Dec. 940 (2010) .................................. 26

Indiana

Naugle v. Beech Grove City Sch., 864 N.E.2d 1058,

(Ind. 2007) ...................................................... 26

Louisiana

Beard v. Summit Institute of Pulmonary Medicine

and Rehabilitation, Inc., 707 So.2d 1233

(La. 1998) ....................................................... 27

Massachusetts

DiXon v. City of Malden, 464 Mass. 446,

984 N.E.2d 261 (2013) ................................... 28

Minnesota

Fougner v. Boise Cascade Corp., 460 N.W.2d 1

(Minn. 1990) .................................................. 28

Lee v. Fresenius Medical Care, Inc., 741 N.W.2d 117

(Minn. 2007) .................................................. 28

Winnetka Partners Ltd. P'ship v. County of

Hennepin, 538 N.W.2d 912, 914

(Minn.1995) ................................................... 29

Michigan

General Motors Corp v. Michigan Unemployment

Comp. Commission, 331 Mich. 303,

49 N.W.2d 305 (1951) .............................. 14, 15

Milford v. People's Community Hospital Authority,

380 Mich. 49, 155 N.W.2d 835 (1968) ............. 8

Rood v. General Dynamics Corp., 444 Mich. 107,

507 N.W.2d 591 (1993) .................................. 15

Toussaint v. Blue Cross & Blue Shield of Michigan,

408 Mich. 579, 292 N.W.2d 880 (1980) ........ 15

Mississippi

Buse v. Mississippi Employment Sec. Commission,

377 So.2d 600 (Miss. 1979) ........................... 29

xii

Livestock Feeds v. Local Union No. 1634 to Congress

of Indus. Workers, 73 So.2d 128, 221 Miss. 492,

34 LRRM 2433 (Miss. 1954) .......................... 29

Montana

Langager v. Crazy Creek Products, Inc.,

287 Mont. 445, 954 P.2d 1169 (1998).13, 29, 31

Morris v. C.C. Communications Corp.,

175 Mont. 23, 571 P.2d 1163 (1977) ............... 29

Nebraska

Roseland v. Strategic Staff Mgmt., Inc., 272 Neb. 434,

722 N.W.2d 499 (2006) .................................. 30

Nevada

Kilgore v. Kilgore, 449 P.3d 843, 850 (Nev. 2019) .. 30

New Hampshire

Appeal of Berlin Educ. Ass'n, NHEA/NEA,

125 N.H. 779, 485 A.2d 1038 (1984) ............. 30

In re State Employees' Ass'n/Serv. Employees' Int'l

Union, 170 N.H. 699, 185 A.3d 192 (2018) .. 30

New Jersey

Owens v. Press Publ'g Co., 20 N.J. 537, 120 A.2d 442

(1956) ..................................................... 28, 30

New York

Marchionda v. Indus. Bd. of Appeals of State,

2014 NY Slip Op 5065, 119 A.D.3d 1342, 989

N.Y.S.2d 214 (N.Y. App. Div. 2014) .............. 31

Vandee v. Suit-Kote Corp., 2022 NY Slip Op 4852

(N.Y. App. Div. 2022) ................................... 31

North Carolina

Calvine Cotton Mills, Inc. v. Textile Workers Union of

America, 238 N.C. 719, 79 S.E.2d 181(1953).31

North Dakota

State ex rel. Hagen for Benefit of Hopfauf v. Bismarck

Tire Center, Inc., 234 N.W.2d 224, 226

(N.D. 1975) ..................................................... 32

Ohio

Nunamaker v. U.S. Steel Corp., 2 Ohio St.2d 55, 206

N.E.2d 206, 31 O.O.2d 47 (1965) .................. 32

xiii

Oklahoma

Campbell v. Indep. School Disct. No. 01, 2003 OK 73,

P.3d 1034 (2003) ............................................ 32

Oregon

State ex rel. Nilsen v. Or. State Motor Ass'n,

248 Or. 133, 432 P.2d 512 (1967) ................. 33

Pennsylvania

O'Donnell v. Allegheny Cnty. N. Tax Collection

Comm., 266 A.3d 2 (Pa. 2021) ...................... 33

South Carolina

Mathis v. Brown & Brown of South Carolina, Inc.,

389 S.C. 299, 698 S.E.2d 773 (2010) ............. 33

South Dakota

MEA/AFSCME Local 519 v. City of Sioux Falls, 423

N.W.2d 164 (S.D. 1988) ................................. 34

Tennessee

Textile Workers Union of America, Local No. 513 v.

Brookside Mills, Inc., 7 McCanless 71,

203 Tenn. 71, 309 S.W.2d 371 (1957) ........... 34

Utah

Mills v. Gronning, 581 P.2d 1334 (Utah 1978) ....... 34

Vermont

Stowell v. Action Moving & Storage, Inc., 182 Vt 98,

2007 VT 46, 933 A.2d 1128 (2007) ................ 35

Quinn v. Pate, 124 Vt. 121, 197 A.2d 795 (1964) ... 35

West Virginia

Farley v. Zapata Coal Corp., 281 S.E.2d 238,

(W.Va. 1981) .................................................. 35

Washington

Scannell v. City of Seattle, 97 Wn.2d 701,

648 P.2d 435 (1982) ....................................... 35

Wisconsin

Valeo v. J. I. Case Co., 18 Wis.2d 578,

119 N.W.2d 384 (1963) .................................. 35

Wyoming

Powder River Coal v. Dept. of Revenue, WY 137, 145

P.3d 442, 448 (Wyo. 2006) ............................. 36

xiv

State Courts of Appeals Cases

Arkansas

Waymack v. KCLA, Inc., 10 Ark.App. 372,

664 S.W.2d 509 (1984) ................................... 23

Idaho

Whitlock v. Haney Seed Co., 114 Idaho 628,

759 P.2d 919 (1988) ....................................... 25

Indiana

Die & Mold, Inc. v. Western, 448 N.E.2d 44

(Ind.Ct.App.1983) .......................................... 25

Haxton v. McClure Oil Corp., 697 N.E.2d 1277

(Ind.Ct.App.1998) .......................................... 27

Kansas

Benjamin v. Manpower, Inc., of Wichita,

600 P.2d 148, 3 Kan.App.2d 657, 661

(Kan. App. 1979) ............................................ 27

Louisiana

Tompkins v. Schering Corp., 441 So.2d 455

(La.Ct.App.1983) ........................................... 27

Maryland

Stevenson v. Branch Banking & Trust Corp.,

159 Md. App. 620, 861 A.2d 735

(Md. App. 2004) ............................................. 27

Michigan

Klein v HP Pelzer Auto Sys, Inc, 306 Mich.App. 67,

854 N.W.2d 521, 526 (2014) .......................... 15

Minnesota

Brown v. Tonka Corp., 519 N.W.2d 474,

(Minn. App. 1994) .......................................... 28

Lee v. Fresenius Medical Care, Inc.,

719 N.W.2d 222, 225 (Minn. App. 2006) ...... 28

Missouri

Hoffmeyer v. Davco Food, Inc., 803 S.W.2d 49

(Mo. App. 1990) ............................................. 29

New Mexico

Wolf v. Sam's Town Furniture, Inc., 120 N.M. 603,

904 P.2d 52, 1995 NMCA 114

(N.M. App. 1995) ........................................... 31

Ohio

Korsnak v. CRL, Inc., 2004 Ohio 6116

(OhioCt.App.2004).......................................... 32

Other State Courts Decisions

Rhode Island

Japonica Partners v. State, C.A. No. 00-1393

(RI 5/7/2004) .................................................. 33

State Statutes

California

Cal. Labor Code § 227.3 ........................................... 24

Kansas

K.S.A.1978 Supp. 44-313(C ) ................................... 27

Maryland

Md Code Labor and Employment (LE) § 3-501(c) .. 27

Md Code Labor and Employment (LE) § 3-505 ...... 27

Massachusetts

G.L. c. 149, § 149 ...................................................... 28

Minnesota

Minn.Stat. § 181.13(a) ............................................ 28

Michigan

P.W.F.B.A. 390 of 1978, M.C.L. 408.471

et seq. ........................ i,iii,1, 4-7,9,14-17, 21-22

Nebraska

Neb. Rev. Stat. §48-1229 ......................................... 30

New Mexico

N.M. Stat. § 50-4-4 ................................................... 31

Oklahoma

40 O.S.2001 § 165.1(4), § 165.3 ............................... 32

xvi

Oregon

ORS 652.320(7) ...................................................... 33

Pennsylvania

43 Pa. Stat. Ann. § 260.2a ....................................... 33

61 Pa. Code § 101.6(a) .............................................. 33

Rhode Island

R.I. Gen. Laws § 28-14-4(b) ..................................... 33

South Carolina

S.C.Code Ann. §§ 41-10-40(D), 41-10-50,

41-10-80(C) .................................................... 33

Utah

Utah Admin. Code r. 610-3-4 ................................... 34

West Virginia

WV Code 21-5-1(c) & (l), 3(a) ................................... 35

Treatises

K. Decker & H. Felix, Drafting and Revising

Employment Contracts § 3.17, at 68 (1991) . 26

1 Restatement Contracts, §§12,52 .......................... 15

Calamari & Perillo, Contracts (3d ed) .................... 15

Dictionaries

Black's Law Dictionary 322 (9th ed. 2009) ............. 26

PETITION FOR A WRIT OF CERTIORARI

Petitioner Gennady Y. Paremsky, a former

employee of Respondent ICMCF, by his attorney

Elena A. Paremsky, petitions this Court for a writ of

certiorari to review the record of the Michigan

Supreme Court that affirmed the Michigan Wage

and Hour Division (WHD)'s order, which interpreted

the Michigan statute, P.W.F.B.A., M.C.L. 408.471 et

seq., to relieve Employer of its contractual obligation

to pay Petitioner his PTO compensation of

$26,241.63, which he had already earned and not

forfeited according to the PTO agreement terms, set

forth in the Respondent's written PTO policies. WHD

required pay to similarly situated claimants, but

refused to apply its mandatory adjudication

standards to the Petitioner's claim, which enabled

Respondent's fraudulent taking of Petitioner's

earnings, contrary to his PTO agreement.

OPINIONS BELOW

On January 4, 2023, the Michigan Supreme

Court issued Order No.164863, which affirmed the

Court of Appeals Order No.360482, Ingham County

30th Circuit Court Order No.21-000505-AA, and the

WHD/ALJ's orders for Claim No.208084/Docket

No.21-007256 (Appendix, 1a-27a) that interpreted

the Michigan statute P.W.F.B.A. to relieve Employer

of its obligation to pay Petitioner his PTO

compensation at discharge, while it was earned and

not forfeited according to the express terms set forth

in Employer's written PTO policies.

JURISDICTION

Petitioner's

Application

the

Michigan

Supreme Court for Leave to Appeal the Court of

Appeals' order was denied on January 4, 2023.

Appendix, 1a. Petitioner invokes this Court's

jurisdiction under 28 U.S.C. §1257, having timely

filed this petition for a writ of certiorari within 90

days of the Michigan Supreme Court's order.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Article VI,

Clause 2: "This Constitution, and the Laws of the

United States... shall be the supreme Law of the

Land; and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws of

any State to the Contrary notwithstanding."

United States Constitution, Amendment V:

"No person shall... be deprived of life, liberty, or

property, without due process of law."

United States Constitution, Amendment

XIV: "No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws."

United States Constitution, Article I,

Section 10: "No state shall pass any Law impairing

obligation of contracts."

STATEMENT OF THE CASE

I. Respondent-Employer Refused To Pay

Petitioner His Already Earned PTO

Compensation of $26,241.63

Petitioner earned 662.5 hours of PTO

compensation worth $26,241.63 prior to his discharge

on October 5, 2020. Appendix, 28a-30a. Respondent

refused to pay Petitioner his PTO compensation,

which he had already earned by being employed

every pay period, and not forfeited according to the

written PTO policy terms, while PTO policies did not

provide for forfeiture of the already earned PTO at

involuntary terminations.

Employer's written PTO policy stated that

(1) PTO credits were "earned": Employees "shall

earn paid time off" "Per Pay Period" (Appendix, 34a,

28a-29a), and by working in excess of the schedules.

Appendix, 30a, 26a(¶2).

(2) "[S]hould [employee] decide to resign or face

termination," Employer's Handbooks "Resignations"

Sections listed information and "tasks... in the

process of termination," including that:

"Your final check for remaining PTO days ...

will be available two (2) weeks after you

received your check for actual time worked."

(Appendix, 31a).

(3) Forfeiture Term No. 1 (at termination): "An

employee, whose service with the Facility terminates

before completion of twelve (12) months of work, shall

receive no paid time off pay." Appendix, 35a(¶2).

(4) Forfeiture Term No. 2 (at resignation): "An

employee who has worked over twelve (12)

continuous months will receive a lump sum payment

for any unused paid time off due them if they

provide a four (4) week notice prior to voluntary

termination." Appendix, 35a(¶3).

(5) Administrator, who in 2004 drafted the PTO

forfeiture terms contained verbatim in the 2018 Plan

(Appendix, 33a, 35a(¶2)), confirmed that

"[T]he PTO procedure

for

Management

employees who resigned or were terminated

was to pay out the unused earned PTO, unless

those employees quit without a notice or worked

for less than a year. Appendix, 40a(§19).

(6)

Respondent's

written

PTO

policy

undisputedly did not have a written term for PTO

forfeiture at involuntary terminations.

II.

WHD/ALJ, As Affirmed By Michigan

Courts, Used the P.W.F.B.A. Statute To

Relieve Respondent-Employer Of Its

Contractual PTO Obligations

WHD interpreted the Michigan P.W.F.B.A.

statute (Appendix, 18a-27a) to relieve RespondentEmployer from paying Petitioner his already earned

$26,241.63 PTO compensation, which Petitioner had

already earned prior to termination (Appendix, 28a30a) according to the written PTO policy terms

(Appendix, 34a, 31a), and did not forfeit under the

written forfeiture terms by undisputedly working for

more than 12 months and not quitting without a

notice (Appendix, 35a(¶2-3), while the PTO policy

undisputedly had no PTO forfeiture term for

involuntary terminations. Appendix, 35a, 31a.

Petitioner appealed the WHD's decision to the

state 30th Circuit Court, and argued that the

application of the P.W.F.B.A., as interpreted by

WHD, was contrary to his actual written PTO

agreement terms, violated his substantive due

process and equal protection rights under the U.S.

Constitution, and enabled theft of his earnings by

Employer. However, the Circuit Court issued an

opinion and order, which ruled that the application

of the P.W.F.B.A. did not violate Petitioner's

constitutional rights, and confirmed interpretation of

the P.W.F.B.A. to relieve Employer from paying

Petitioner his already earned compensation

(Appendix, 4a-17a), which was contrary to the

actual terms of the Petitioner's PTO agreement, as

evidenced by the Respondent's written PTO policies.

The Circuit Court claimed that "the written

policies of the ICMCF are silent as to a payout of

PTO when an employee has been involuntarily

terminated" (Appendix, 10a), although Petitioner

undisputedly had aready "earned" "per pay period"

and otherwise (Appendix, 34a, 28a-29a, 30a,

26a(¶2)) and not forfeited his earnings according to

the express conditions set forth in the Respondent's

written PTO policy. WHD and the Court actually

made up a statement, which was not in the

written policy - they alleged that the already

earned compensation will be paid "only" to those

employees who quit with a required notice, while

the word "only" is not in the policy, there is a PTO

forfeiture term for those "whose service...

terminates," and an express promise to pay PTO

at any separation (Appendix, 35a(¶2), 31a).

Petitioner argued in all lower courts that the

P.W.F.B.A. statute must be interpreted to comply

with the contract law, but the WHD and the courts

interpreted it contrary to the contractual

principles, including the fact that they added nonexistent terms to the written policy, which

Petitioner never agreed to, ignored the actual

written terms that he agreed to, and interpreted

the policy for the drafter. Petitioner renewed his

arguments in applications for leave to appeal before

the Michigan Court of Appeals and its Supreme

Court, which they denied. (Appendix, 1a-4a).

Petitioner also argued in his petition to the

Circuit Court that WHD "aided and abetted

Employer in defrauding Employee out of his

substantial earnings of $26,241.63," which

triggered violation of criminal laws, unless it was

corrected by the Courts, which the Circuit Court

refused to do. WHD and the Court's use of the

P.W.F.B.A. statute facilitated the Employer's

fraudulent scheme of misappropriation of

Petitioner's earnings, also resulting in violations of

federal laws of Social Security, IRS, and RICO Act,

in additional to the state criminal laws.

GROUNDS FOR GRANTING THE WRIT

Pursuant to 28 U.S.C. §1257(a), this Court has

jurisdiction to review rulings in this case by a writ of

certiorari because the validity of the Michigan

P.W.F.B.A. statute, as confirmed by its highest state

court, is drawn in question, since it was used to deny

Petitioner pay of his already earned compensation

without due process, in violation of his equal

protection rights, and the contract clause of the U.S.

Constitution.

addition,

pursuant

U.S.Sup.Ct.R.10, the reasons for granting the writ

are compelling because the Michigan Supreme

Court's 01-04-23 order, which affirmed the WHD

decision, is contrary to federal laws: statutes and

rulings of the U.S. Supreme Court and U.S. Circuit

Courts, and contradicts the current rulings of highest

courts of all other states in the nation, holding that

vacation with pay, once earned according to the

express conditions set forth in the Employer's policy,

is compensation like wages and becomes due and

payable at termination if not paid during

employment.

I. The Michigan Statute, P.W.F.B.A., Is

Repugnant To the U.S. Constitution and

Other Laws of the United States

As affirmed by the Michigan Supreme Court,

WHD by using the P.W.F.B.A. statute relieved

Employer from its contractual obligations to pay

Petitioner his already earned PTO compensation,

while he had met all of the express written PTO

policy conditions for earning and not forfeiting such

compensation at termination, and such an agreement

had no PTO forfeiture provision for involuntary

terminations. WHD refused to apply the mandatory

adjudication standards to Petitioner's claim, while it

required pay to similarly situated claimants. Such

decisions violate the U.S. Constitution and other

federal laws, making the review by this Court

compelling pursuant to 28 U.S.C. 1257(a).

A. Application of the Michigan Statute

P.W.F.B.A. Violated Petitioner's

Substantive Due Process Rights

The United States Constitution precludes the

government from depriving a person of property

without due process of law. U.S. Const., amend. XIV.

"The right not to be subject to 'arbitrary or

capricious' action by a state either by legislative or

administrative action is commonly referred to as a

'substantive due process right." Pearson v. City of

Grand Blanc, 961 F.2d 1211, 1217 (6th Cir. 1992). To

state a substantive due process claim, a plaintiff

must allege that (1) it possesses an interest protected

by substantive due process (2) that was infringed in

an arbitrary and capricious manner. Royal Crown

Day Care LLC v. Dep't of Health & Mental Hygiene of

the City of N.Y., 746 F.3d 538, 545 (2d Cir. 2014).

"`The maintenance of proper standards on the

part of administrative agencies in the performance of

their quasi-judicial functions is of the highest

importance.... [I]f these multiplying agencies deemed

to be necessary in our complex society are to serve

the purposes for which they are created and endowed

with vast powers, they must accredit themselves by

acting in accordance with the cherished judicial

tradition embodying the basic concepts of fair play.'

Morgan v. United States, 304 U.S. 1, 22, 58 S.Ct. 773,

778, 82 L.Ed. 1129, 1134 (1938). One of the

requirements of substantive due process is the

existence of reasonably precise standards to be

utilized by administrative agencies in the

performance of delegated legislative tasks. Milford v

People's Community Hospital Authority, 380 Mich.

49, 57-63; 155 N.W.2d 835 (1968).

In this case, the standards for WHD are its

mandatory adjudication policy A5.08, General

Entries, and substantive cases.1 WHD refused to

https://www.michigan.gov/lara/bureau-list/moahr/regulatory/wage-hour

(Also, in Appellant's Appendix to the Michigan Supreme Court,

pp.App.82-84, App.65-67, App.115-123)

apply such standards to the Petitioner's claim for his

earnings, and denied payment of his already earned

compensation, which was also contrary to

Petitioner's agreement with Respondent that PTO is

earned and at most could be forfeited only by either

working for less than 12 months, or by quitting

without a notice. Appendix, 35a(¶2-3), 40a(§19).

B. Application of the Michigan Statute

P.W.F.B.A. Violated Petitioner's Equal

Protection Rights

Equal protection of the laws is guaranteed by the

U.S. Constitution Amendments V and XIV. "The

United States Supreme Court allows such 'class of

one' claims to be brought, but requires a plaintiff to

show that it was actually treated differently from

others similarly situated and that no rational basis

exists for the dissimilar treatment." Willowbrook v

Olech, 528 U.S. 562, 564; 120 S.Ct. 1073; 145 L.Ed.2d

1060 (2000).

The plaintiff is not required to

"demonstrate an exact correlation... in order for the

two to be considered `similarly-situated'; rather...

[they] must be similar in `all of the relevant

aspects.'" Ercegovich v Goodyear Tire & Rubber Co,

154 F.3d 344, 352 (6th Cir. 1998).

WHD's decision, upheld by the Michigan

Supreme Court, denied Plaintiff his constitutional

equal protection guarantees without any rational

basis, when it refused to require Employer to pay

Petitioner his earned PTO while it required such pay

to similarly situated claimants who have earned

vacation with pay/ PTO according to the terms of the

employers' written policy, and have not forfeited it

under the express written terms. WHD required such

pay, even if the written policy was silent as to payout

to specific groups of employees or employees in

general. The WHD's substantive cases, in which

WHD required pay of the already earned vacation

with pay/ PTO compensation to similarly situated

employees at termination of employment, absent any

express written forfeiture terms to the contrary are

as follows2:

1. 68, 80-686 Bostwick v. Diecast Corp (1981):

"The [vacation pay] benefit was earned by EE and

absent any provision in the agreement disqualifying

EEs who do not work a full year or who terminate,

the previously earned benefit must be paid."

2. 71, 80-962 Petteys v. Riverside Pontiac-BuickGMC (1982): "ER may not cancel benefits already

earned. ER violated Section 3 [M.C.L. 408.473]."

3. 85, 79-274 Roeder v. David Carrigan &

Associates, Inc. (1980): "ER refused to pay EE's

earned and unused vacation time at termination. ER

claimed that since the written policy... contained no

provision allowing vacation time to be carried over

from year to year, it did not have to pay the benefit.

ER violated Section 3... [A] benefit once earned must

be paid."

4. 176, 81-2067 Eddy v. Model Coverall Service,

Inc (1982): "Section 4 [M.C.L. 408.474] prohibits the

withholding of compensation due an EE as a fringe

benefit to be paid at a termination date unless the

withholding is agreed upon by written contract or a

signed statement from EE." No withholding is

https://www.michigan.gov/lara/bureau-list/moahr/regulatory/wage-hour

(Wage and Hour Digest Entries 2014, also in Appellant's Appendix to

the Michigan Supreme Court, pp.App.115-123)

allowed when "[t]he record does not establish that

the contract of employment permitted this

deduction", and "EE did not authorize this deduction

in writing."

5. 217, 82-2529 Hines v. Cambridge Business

Schools (1982): "ER violated Section 4 for refusing

to pay EE vacation earned upon termination.

Neither of the written policies state that earned

vacations must be forfeited if not taken, nor does it

state that an earned vacation is lost if an EE is

not employed during the vacation period."

6. 274 82-2996 Jacobs v. Guardsmark, Inc.:

"Under the terms of ER's policy, an EE in good

standing who is terminated ... is entitled to pay for

accrued vacation time. The policy does not state

that an EE who is discharged for cause forfeits

accrued vacation time. Since documents which are

ambiguous should be construed against the party

drafting them, it is concluded that EE's accrued

vacation benefit was not forfeited under paragraph

5 of ER's policy. ER violated Section 3 by failing to

pay EE this vacation benefit."

7. 343, 83-3352 Matsen v. Pediatric Associates of

Farmington. PC (1984): "[T]he written policy did not

provide for forfeiting earned vacation. ER violated

Section 4 for withholding compensation due EE as a

fringe benefit to be paid at termination, without

written consent or a written contract."

8. 370, 83-3495 Corl v. Steketee's Audio Shop,

Inc. (1984): "Prior to discharge EE became eligible for

payment of two weeks' vacation. ...ER violated

Section 4 for withholding a fringe benefit [at

termination] without EE's written consent."

9. 455, 84-4195 Sams v. Midwestern Institute,

Inc. (1985): "The written policy clearly stated that

each permanent EE was entitled to 10 vacation days

per year on the anniversary date of employment at

the rate of 3.34 hours per pay period. This means

that once that precondition has been met, the EE

may then exercise the right or claim to the 10

vacation days. The written policy also stated that

accrued vacation days may be taken at any time

during the year. ...ER violated Section 3 [M.C.L.

408.473]

by failing to pay fringe benefits in

accordance with the terms of the written policy, and

also Section 4, which prohibits ERs from withholding

a payment of compensation due an EE as a fringe

benefit to be paid at a termination date unless

agreed to by the EE with a signed statement.”

10. 544, 84-4260 Kalajian v. Grosse Pointe

Farms Municipal Court (1985): "EE earned 120

hours of vacation for which she had not been paid.

[ A t t e r m i n a t i o n ] , ER deducted 68 hours to offset

excess sick time used without her written consent.

ER violated Section 4 by failing to pay EE vacation

benefits owed."

11. 653, 85-5015 Sokol v. Tradin' Times, Inc.

(1986): "[V]acation benefits were provided in ER's

Employee Handbook... ER violated Section 4 by

failing to pay vacation benefits. ER did not meet its

burden of proving vacation benefits were not due."

12. 672, 85-5060 Higham v. Clark's Store

Fixtures, Inc. (1986): "There was a written policy

statement for vacation pay. ...ER violated Section 4

for failure to pay unused vacation benefits earned.

Section 3 requires payment of fringe benefits

contained in a written contract or policy. "

13. 727, 87-6309 Oglesby v. Wedtech of

Michigan, Inc. (1987): "[A] portion of [EE's] owed

fringe benefits were used ... [to pay for medical

insurance]. This was a violation of Section 4, since

EE did not give written consent for the deduction."

14. 729, 86-5531 Scott v. National Janitors

Supply Co. (1987): "EE used one of two weeks'

vacation earned prior to his termination. ER's...

policy requiring EEs to lose unused vacation at

termination was not in the written policy. ER

violated Section 3 by failing to pay vacation

according to written policy, and Section 4 for

withholding EE's vacation pay without written

consent. The requirement that EEs must use

vacation time in the year it is earned does not

preclude them from being paid for unused vacation

earned during the year of termination."

15. 1625, 2009-489 Witherow v Mead & White

Electrical Contractors, Inc. (2009): "The ER

employee policy handbook stated, '[a]fter one year of

service... you become eligible for one week of paid

vacation.' The policy was silent as to whether EE

was still eligible for the vacation pay if EE resigned.

In the absence of language to the contrary... EE was

eligible for the vacation pay. The ALJ cited Langager

v. Crazy Creek, 287 Mont. 445, 455; 954 P.2d 1169

(1998).... The written vacation pay policy in

Langager was also silent. In Langager, the

Montana Supreme Court found vacation pay is a

vested contractual benefit earned by virtue of an

EE’s labor and the right to the benefit vests

when the labor is performed. Id. Here, the

vacation pay vested after the one year anniversary of

EE’s employment."

16. 1473, 98-1178 Billenstein v Centennial

Michigan RSA 7 Cellular Corporation (1999):

Employer's policy provision that "no wages are due

to an employee who separates before the 15th of the

month" was unlawful because "it is against public

policy for employees to work without compensation."

C. Application Of the Michigan Statute

P.W.F.B.A. Violated the Contract

Clause Of the U.S. Constitution

"No state shall pass any Law impairing

obligation of contracts." U.S. Const., art. 1 §10. In

this case, Michigan passed the P.W.F.B.A., which

was applied in this case to relieve RespondentEmployer from paying Petitioner his already earned

substantial PTO compensation of $26,241.63.

The Michigan Supreme Court refused to

acknowledge that its decision in this case contradicts

even its past decisions, which affirmed that "wages"

"include[]" "vacation pay." General Motors Corp v.

Michigan Unemployment Comp. Commission, 331

Mich. 303, 312; 49 N.W.2d 305 (1951). "Since such

compensation is in fact paid as wages, it is a plain

disregard of the law not to include such payments

among the employees’ wages,” (Id. at 313) as 'it

could scarcely be said that such compensation to the

employee is not 'wages' merely because it is not

included under the heading 'Wages' in the contract."

Id. at 314. The Federal 6th Circuit Court which has

jurisdiction over Michigan, held that "[v]acation with

pay constitutes additional wages for services already

performed." International Ass'n of Machinists and

Aerospace Workers, Local Lodge 2369 v. Oxco Brush

Div. of Vistron Corp, 517 F.2d 239 (6th Cir. 1975).

As Petitioner argued in his state courts'

filings, he earned his PTO through a unilateral

contract with Respondent. “A unilateral contract is

one in which the promisor does not receive a promise

in return as consideration. 1 Restatement Contracts,

§§12,52, pp. 10–12, 58–59.... [A] typical employment

contract can be described as a unilateral contract in

which the employer promises to pay an employee

wages in return for the employee's work. Klein v. HP

Pelzer Auto Sys., Inc., 306 Mich.App. 67, 854 N.W.2d

521, 526 (2014). "[A]n employee's legitimate

expectations grounded in an employer's written

policy statements have been held to give rise to an

enforceable contract." Toussaint v. Blue Cross & Blue

Shield of Michigan, 408 Mich. 579, 598; 292 N.W.2d

880 (1980). The test is how a reasonable person in

the position of the promisee would have interpreted

the promisor's statements or conduct.... [C]ourts have

required that assent to the formation of a contract be

manifested in some way, by words or other conduct,

if it is to be effective." Rood v. General Dynamics

Corp, 444 Mich. 107,117 n.14, 507 N.W.2d 591

(1993), quoting Calamari & Perillo, Contracts(3d

Ed.), §2-2,p.27; §3.1,pp.160-161.

Respondent's offer, manifested by written words

of its written PTO policy and accepted by Petitioner's

work performance, gave rise to an enforceable

unilateral contract. PTO compensation is due as

wages already earned for the already exchanged

labor. Klein, General Motors Corp, Supra. It must

have been paid to Petitioner either during his

employment or at termination as it was already

earned. However, WHD, upheld by the Michigan

Supreme Court, interpreted the P.W.F.B.A statute to

relieve Employer from its obligation to pay

Petitioner his already earned PTO compensation, in

violation of the Contract Clause of the U.S.

Constitution, art. I, §10.

D. Application Of the Michigan Statute

P.W.F.B.A. Conflicts With U.S. Laws

Which Define Earned Vacation With

Pay As Wages, Due Once Earned

The Michigan WHD, as upheld by the Michigan

Supreme Court, used the Michigan statute

P.W.F.B.A. to relieve Respondent from paying

Petitioner his already earned PTO compensation at

involuntary termination, although the Respondent's

written PTO policy did not have a PTO forfeiture

provision for involuntary terminations. This is also

in conflict with the Laws of the United States, which

define vacation with pay as wages, due once earned.

1. Federal Statutes Define Vacation

With Pay As Wages Due Once

Earned

Under federal statutes, vacation with pay is wages:

1. 20 C.F.R. §404.1044 (Social Security).

"[V]acation allowance paid by... employer [is] wages."

2. 29 C.F.R. §1620.10 (the Equal Pay Act).

"[V]acation and holiday pay, and premium payments

for work on Saturdays, Sundays, holidays, regular

days of rest or other days or hours in excess or

outside of the employee's regular days or hours of

work are deemed remuneration for employment and

therefore wage payments."

3. 11 U.S.C. Sec.507(a) (Bankruptcy Code).

[C]laims... for... wages, salaries,... including vacation,

..., sick leave pay earned by an individual."

4. 26 C.F.R. 31.3121(a)-1(g),(i) (Internal

Revenue Code). "Amounts of... 'vacation allowances'

paid to an employee constitute wages." "[V]acation

allowances paid to salaried or hourly-paid employees

by an employer are `wages'." Rev.Rul.65-194.

5. ERISA, 29 U.S.C. 1001 Et Seq. Vacation

with pay is "a part of regular basic compensation,"

"as the payment of salary." Massachusetts v. Morash,

490 U.S. 107, 109; 120 S.Ct. 1668, 104 L.Ed.2d 98

(1989); 29 C.F.R §2510.3-1(b)(3) (1987).

2. U.S. Federal Courts Define

Vacation With Pay As Wages,

Due Once Earned

U.S. Supreme Court. An employer is subject to

a state criminal statute3 for not paying its employees

accrued but unused vacation at discharge. Morash,

Supra. Unused vacations with pay, "except for the

fact of deferral, ...are as much a part of regular basic

compensation as overtime pay or salary payments

made while the employee is on vacation; ...are not

contingent upon employment termination." Id. at

109. Michigan has a similar statute P.W.F.B.A.,4 but

"[A]ny employee discharged from such employment shall be

paid in full on the day of his discharge.... The word `wages' shall

include any holiday or vacation payments due an employee

under an oral or written agreement." Mass.Gen.Laws 149:148

(1987).

4 "An employer shall not withhold a payment of compensation

due an employee as a fringe benefit to be paid at a termination

it was interpreted to relieve Respondent from its

obligation to pay Petitioner his already earned PTO,

although it was earned and not forfeited according to

the written terms of its PTO policy (Appendix, 1a27a), which directly contradicts the U.S. Supreme

Court's ruling in Morash.

1st Circuit. "[T]he severance provision was a

contracted for employment benefit, just like salary or

vacation pay, promised in exchange for... services."

Doctors Hosp., Inc. v. Vilar, 45 F.3d 423 (1st Cir.

1995))."

2nd Circuit. "A vacation with pay is in effect

additional wages." Once "the consideration has been

furnished," "vacation with pay was completely

earned and only the time of receiving it was

postponed." In re Wil-Low Cafeterias, 111 F.2d 429,

432 (2d Cir. 1940).

3rd Circuit. "A vacation with pay is in effect

additional wages.... The consideration for the

contract to pay for a week's vacation had been

furnished, that is to say, one year's service had been

rendered..., so that the week's vacation with pay was

completely earned and only the time of receiving it

was postponed. If the employer had discharged the

employee wrongfully after the latter had done the

work necessary to earn a vacation he could not be

deprived of the benefits due him. In re Public Ledger,

161 F.2d 762, 767-768 (3rd Cir. 1947), quoting "In Re

date unless the withholding is agreed upon by written contract

or a signed statement." M.C.L. 408.474 ) "'Fringe benefits'

means compensation due an employee pursuant to a written

contract or written policy for holiday,... time off for personal

reasons or vacation." M.C.L. 408.471(e).

Wil-Low Cafeterias Inc., 111 F.2d 429, 432(2d Cir.

1940).

4th Circuit. "The word “earned,” as used in 11

U.S.C. § 507(a)(4)(A), applies not only to wages,

salaries, and commissions, but also to several other

types of compensation..." (Matson v. Alarcon, 651

F.3d 404, 408-409; 55 Bankr.Ct.Dec. 23, 51 Employee

Benefits Cas. 2574, 17 Wage & Hour Cas.2d (BNA)

1713 (4th Cir. 2011)), which is "wages, ...including

vacation, ...and sick leave pay earned by an

individual.” Id.

5th Circuit. "Vacation pay is, by all of the

decisions, regarded as wages." United States v.

Munro-Van Helms Co., 243 F.2d 10, 39 LRRM 2598

(5th Cir. 1957).

6th Circuit. "'A vacation with pay is in effect

additional wages." Smith v. Kingsport Press, Inc., 366

F.2d 416, 419 (6th Cir. 1966); quoting Circuit in Hire

v. E. I. DuPont De Nemours & Company, 324 F.2d

546 (6th Cir. 1963). "Wages are not... always earned

by the expenditure of physical or mental effort on the

part of the employee.... [T]he Board... includes within

the term 'wages,' vacation pay, sick... pay." Nierotko

v. Social Security Board, 149 F.2d 273 (6th Cir.

1945); 327 U.S. 358, 66 S.Ct. 637, 90 L.Ed. 718

(1946), affirmed.

7th Circuit. "11 U.S.C. Sec. 507(a)(3)

"...[C]laims for wages, salaries, or commissions,

including vacation, ... and sick leave pay ... earned by

an individual." Northwest Engineering Co., Matter of,

863 F.2d 1313, 1314 (7th Cir. 1988).

8th Circuit. "[W]e note the prevailing view that

vacation benefits are compensation for work already

performed. 'A vacation with pay is in effect

additional wages." Teamsters Local Union 688 v.

John J. Meier Co., 718 F.2d 286, 289 (8th Cir. 1983).

"[V]acation pay constituted accrued compensation for

work previously performed..." Id. at 290.

9th Circuit. Accrued vacation pay is wages. In

re EV Moore of California, Inc., 447 F.2d 1106 (9th

Cir. 1971).

10th Circuit. "[V]acation pay... had been held

to be within the definition of wages..." Weir v.

Anaconda Co., 773 F.2d 1073, 1077 (10th Cir. 1985).

11th

Circuit.

"[B]ack

pay"

earned

compensation includes "vacation pay". Munoz v.

Oceanside Resorts Inc., 223 F.3d 1340, 1348 (11th

Cir. 2000);" 29 U.S.C. 621-634 (ADEA).

DC Circuit. When vacation with pay was

earned, but the employer did not allow to schedule it

after it was earned, the employee's right to receive

such pay accrued. Allied Industrial Wkrs., AFL-CIO

Loc. U. No. 289 v. NLRB, 155 U.S.App.D.C. 112, 476

F.2d 868 (D.C. Cir. 1973).

Tribal Circuit. "[F]inancial compensation for

unused vacation hours owed to Appellant [was a]

justiciable[] ...claim[] for money due and owing."

Louis-Williams v. Colville Confederated Tribes, 14

CCAR 35, 7 CTCR 29 (Colville Confederated Tribes

Ct. of App. 2019).

Federal Circuit. "'[V]acation pay' constitutes

... 'income from wages.'" Barger v. Office of Personnel

Management, 9 F.3d 978 (Fed. Cir. 1993).

3. The Michigan Statute P.W.F.B.A.

Was Used To Enable ICMCF's

Tax Evasion Scheme, And

Violations Of Federal Social

Security, IRS Laws, And RICO Act

Employers must report employees' earnings to

the Internal Revenue Service and submit

withholdings of income, social security and Medicare

tax on such income to the IRS.

26 C.F.R.

§601.401(a). RICO makes it a crime “for any person

employed by or associated with any enterprise

engaged in, or the activities of which affect,

interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct of

such enterprise's affairs through a pattern of

racketeering

activity.”

U.S.C.

§1962(c).

“Racketeering activity” includes “any act which is

indictable under any of the following provisions of

title 18, United States Code: ...section 1341 [18

U.S.C. § 1341] (mail fraud), section 1343 [18 U.S.C.

§1343] (wire fraud).” Id. §1961(1).

In this case, Respondent by its Administrator

Leslie Shanlian, had a scheme to have its employees,

including Petitioner, earn PTO compensation at their

hourly rates, discourage employees from taking time

off claiming short-staffing, and then refuse to pay the

already earned compensation at termination. Such

earned PTO credits were even removed from

Petitioner's payroll account (Appendix, 28a-29a),

and their value was transferred into Respondent's

assets, without paying any employment taxes.

Respondent failed to pay $4,014.96 FICA taxes on

Petitioner's PTO compensation of $26,241.63 in 2020

by refusing to pay him his already earned PTO

compensation at termination.

The conduct of Respondent, aided by the

Michigan State WHD and its courts through the use

of the Michigan statute P.W.F.B.A., amounted to a

common illegal enterprise, the purpose of which was

to defraud tax authorities and employees in order to

realize greater profits. To further its fraudulent

scheme, Respondent committed mail fraud and wire

fraud by sending fraudulent pay stubs, W-2 forms,

and other documents through the mail and the wires.

ICMCF engaged in tax evasion by under-reporting

the income Petitioner earned and failing to pay the

required withholdings to tax authorities on the

earnings.

Respondent decreased the Petitioner's

taxable income in 2020 by not properly reporting his

already earned $26,241.63 PTO compensation to the

tax authorities, which deprived the social security

administration of the $4,014.96 FICA contribution on

this amount in 2020 and decreased Petitioner's

future social security benefits.

II. Highest State Courts Define Vacation With

Pay As Wages/ Earned Compensation, Due

Once Earned, As Codified By Most States

WHD order, which denied pay of the Petitioner's

already earned and not forfeited PTO compensation

of $26,241.63, conflicts with the decisions of

practically all other highest state courts, and those

state courts complied with the Contract Clause of the

U.S. Constitution and other federal laws, as they did

not relieve employers from their contractual

obligations to pay such compensation to their

employees:

Alabama. Employer "could not, as a matter of

law, revoke the vacation pay policy once the

employees had performed." In the absence of

"forfeiture provisions," "vacation pay" must be paid

to discharged employees who have already performed

under such unilateral contract. Amoco Fabrics And

Fibers Co., Inc. v. Hilson, 669 So.2d 832, 835 (Ala.

1995).

Alaska. "An employee earns her vacation pay

through her labor. 'It is established that vacation pay

is not a gratuity or a gift, but is, in effect, additional

wages for services performed.' The consideration for

vacation with pay is the employee's year-long labor....

'A vacation with pay is in effect additional wages...

'Vacation pay 'is simply an alternate form of wages,

earned at the time of other wages, but whose receipt

is delayed.'" Pyramid Printing v. Com'n for Human

Rights, 153 P.3d 994, 1000 (Alaska 2007).

Arizona. "A.R.S. § 23-350/-355 subjects an

employer to treble damages for failing to pay

nondiscretionary compensation for labor or services

actually performed and for which the employee had a

reasonable expectation, no matter how the

compensation is calculated or whether labeled as

wages, ...vacation pay," etc. Schade v. Diethrich, 158

Ariz. 1, 760 P.2d 1050 (1988); Abrams v. Horizon

Corp., 137 Ariz. 73, 77, 669 P.2d 51, 55 (1983).

Arkansas. Earned, unused vacation must be

paid to departing employees if the employer provides

paid vacation according to an accrual plan and

vacation is earned according to that plan. Oil Fields

Corp. v. Hess, 186 Ark. 241, 53 S.W.2d 444 (1932).

"Where an employee is given a vacation with pay,

...the employee is entitled to his wages for the time

off." Waymack v. KCLA, Inc., 10 Ark.App. 372, 664

S.W.2d 509 (1984).

California. The right to a paid vacation, when

offered in an employer's policy or contract of

employment, constitutes deferred wages for services

rendered. Case law from this state and others, as

well as principles of equity and justice, compel the

conclusion that a proportionate right to a paid

vacation "vests" as the labor is rendered. Suastez v.

Plastic Dress-Up Co., 31 Cal.3d 774, 852; 183

Cal.Rptr. 846, 647 P.2d 122 (1982) "[W]henever an

employee is discharged "without having taken off his

vested vacation time, all vested vacation shall be

paid to him as wages at his final rate in accordance

with... [the] employer policy respecting eligibility or

time served... [A]n employment contract or employer

policy shall not provide for forfeiture of vested

vacation time upon termination." Id. at 778, citing

California Labor Code section 227.3.

Colorado.

Unused

accumulated

"leave

‘constitutes deferred wages for services rendered’...

‘[V]acation pay is not a gratuity or a gift, but is, in

effect, additional wages for services performed.’

...'Vacation pay is a form of deferred earning' ...' and

are, in effect, a debt due to [employee] as part of the

compensation he has earned for work he has already

performed.'" The Marriage Of Marta Doris Cardona

v. Castro, 214 CO 3, 316 P.3d 626 (2014). Nieto v.

Clark's Mkt., Inc., 2021 CO 48, 488 P.3d 1140 (2021).

District of Columbia. "Vacation with pay is

included in the District of Columbia definition of

wages. ... 'wages' include all forms of compensation...

paid for services performed under an employment

contract. Gordon v. District Unemployment Comp.

Bd., 402 A.2d 1251, 1258 (D.C. 1979). In the absence

of an agreement to the contrary, the fact that an

employee was discharged for cause cannot operate to

deprive him of earned vacation pay rights. The

burden is on the employer to prove the existence of

an agreement to the contrary, if there is any. NRA v.

Ailes, 428 A.2d 816 (D.C. App. 1981).

Florida. "[D]eferred compensation accounts

unconnected with retirement, include[] but [are] not

limited to ... sick leave, and vacation pay..." In re

Amendments to Fla. Family Law Rules Procedure,

214 So.3d 400, 505 (Fla. 2017).

Hawaii. "Wage is '[p]ayment for labor or

services' and includes 'every form of remuneration

payable for a given period to an individual for

personal services, including salaries, ...vacation pay."

State v. Demello, 136 Hawai'i 193, 213; 361 P.3d 420

(2015).

Idaho. "[P]ayment for earned vacation is

directly analogous to wages. All courts that have

considered this question under their respective wage

claim statutes have concluded likewise. See, e.g.,

Hartman v. Freedman, 197 Colo. 275, 591 P.2d 1318

(1979); Die & Mold, Inc. v. Western, 448 N.E.2d 44

(Ind.Ct.App.1983); Tompkins v. Schering Corp., 441

So.2d 455 (La.Ct.App.1983); State v. Oregon State

Motor Association, 248 Or. 133, 432 P.2d 512 (1967).

Cf. Schoonover v. Bonner County, 113 Idaho 916, 750

P.2d 95 (1988) (payment for earned compensatory

time constitutes wages)" Whitlock v. Haney Seed Co.,

114 Idaho 628, fn 6 759 P.2d 919 (Idaho App. 1988),

unappealed.

Illinois. "[V]acation days accrued by an

employee are his property because they are, in effect,

a debt due to him as part of the compensation he has

earned for work he has already performed." Abrell v.

Abrell, 923 N.E.2d 791, 803; 236 Ill.2d 249, 337

Ill.Dec. 940 (Ill. 2010). "`Compensation consists of

wages and benefits in return for services. It is

payment for work. ...Compensation includes wages,

...vacation, sick pay, ...leaves of absence.'" ...Black's

Law Dictionary 322 (9th ed. 2009), quoting K. Decker

& H. Felix, Drafting and Revising Employment

Contracts § 3.17, at 68 (1991). Further, "deferred

compensation" is defined as "payment for work

performed, to be paid in the future or when some

future event occurs." Black's Law Dictionary 322 (9th

ed. 2009)." Id.

Indiana. If an employer provides paid vacation,

it is considered a type of deferred compensation in

lieu of wages and is subject to the state's Wage

Payment Statute. Naugle v. Beech Grove City Sch.,

864 N.E.2d 1058, 1067 (Ind. 2007). Indiana Court of

Appeals clarified that "[a]n agreement to give

vacation pay to employees made before they perform

their service, and based upon the length of service

and time worked, is not a gratuity but rather is in

the form of compensation for services. ...When the

employee renders services, his or her right to

receive vacation pay is vested, as much as the right

to receive wages or other forms of compensation.

...Vacation pay is additional wages, earned weekly,

where only the time of payment is deferred. It

necessarily follows that, absent an agreement to the

contrary, the employee would be entitled to the

accrued vacation pay at the time of termination."

Haxton v. McClure Oil Corp., 697 N.E.2d 1277, 1281

(Ind.Ct.App.1998).

Kansas. "In the absence of a valid contract

provision authorizing forfeiture, vacation pay [is

wages and] cannot be forfeited once the worker has

earned the same."...[T]he employer's attempt to

retroactively forfeit the wages cannot form the basis

for a "good-faith dispute" as it was a wilful violation,

subjecting the employer to statutory penalties.

Benjamin v. Manpower, Inc., of Wichita, 600 P.2d

148, 149; 3 Kan.App.2d 657, 661 (Kan. App. 1979),

citing K.S.A.1978 Supp. 44-313(C ), unappealed.

Louisiana. When an employer agrees to pay

employees for unused vacation time as a condition of

their employment, that accrued vacation pay is

compensation that is earned during a pay period....

As such, accrued vacation time is an "amount then

due under the terms of employment" and constitutes

wages. Beard v. Summit Institute of Pulmonary

Medicine and Rehabilitation, Inc., 707 So.2d 1233

(La. 1998).

Maryland. "Vacation pay... has often been said

to be in the nature of deferred compensation, in lieu

of wages, earned in part each week the employee

works, and payable at some later time," and is part of

"wages due for work that the employee performed

before the termination of employment." Stevenson v.

Branch Banking & Trust Corp., 861 A.2d 735, 159

Md. App. 620 (Md. App. 2004), quoting LE § 3-501(c),

§ 3-505 and citing Owens v. Press Publ'g Co., 20 N.J.

537, 120 A.2d 442, 446 (1956) ("vacation with pay is

in effect additional wages").

Massachusetts. “[A]ny employee discharged

from... employment shall be paid in full on the day of

his discharge. ...The word “wages” shall include any

holiday or vacation payments due an employee under

an oral or written agreement.... No person shall by a

special contract with an employee or by any other

means exempt himself from this section.” DiXon v.

City of Malden, 464 Mass. 446, 984 N.E.2d 261

(2013), affirming the state statute, G.L. c. 149, §149.

Minnesota. "[V]acation and holiday pay

actually earned are to be included in the wage basis

calculation." Fougner v. Boise Cascade Corp., 460

N.W.2d 1 (Minn. 1990). "[P]aid time off or vacation

pay constitutes wages." Lee v. Fresenius Medical

Care, Inc., 741 N.W.2d 117, 125 (Minn. 2007).

"Prevailing case law from other jurisdictions

concludes that paid vacation time is part of an

employee's wages and not a gratuity." Id. "[A]n

agreement to pay vacation pay to employees made to

them before they performed their services, and based

upon length of service and time worked, is not a

gratuity but is a form of compensation for services,

and when the services are rendered, the right to

secure the promised compensation is vested as much

as the right to receive wages or other form of

compensation." Brown v. Tonka Corp., 519 N.W.2d

474, 477 (Minn. App. 1994). "[I]n Minn.Stat.

§181.13(a), the term 'wages' includes compensation

for accrued vacation time accumulated under the

terms of an employment contract and that under

Minn.Stat. §181.13(a), compensation for accrued

vacation time actually earned and unpaid at the time

an employee is discharged must be paid in the same

manner as other wages and commissions." Lee v.

Fresenius Medical Care, Inc., 719 N.W.2d 222, 225

(Minn. App. 2006). "'[A] party cannot provide by

contract what is prohibited by statute.'" Id., quoting

Winnetka Partners Ltd. P'ship v. County of

Hennepin, 538 N.W.2d 912, 914 (Minn. 1995)."

Forfeiture

agreements

already

earned

compensation are invalid. Id. at 226.

Mississippi. "[T]he vacation pay was wages

earned during their employment." Buse v.

Mississippi Employment Sec. Commission, 377 So.2d

600 (Miss. 1979). "[V]acation pay is not a gratuity or

a gift, but is in effect additional wages for services

performed." Livestock Feeds v. Local Union No. 1634

to Congress of Indus. Workers, 73 So.2d 128, 132; 221

Miss. 492, 34 L.R.R.M. 2433 (Miss. 1954).

Missouri. An employee is entitled to the pay of

the accrued vacation at termination, which was his

contractual right. Hoffmeyer v. Davco Food, Inc., 803

S.W.2d 49 (Mo. App. 1990), aff'd, transfer to the

Missouri Supreme Court denied.

Montana. "[V]acation pay is earned by virtue of

an employee's labor and once it has accrued, it has by

definition been earned.... [O]nce an employee has

accrued paid vacation pursuant to the terms of his or

her employment contract, an employer may not then

impose conditions subsequent which would, if unmet,

effectively divest an employee of that accrued

vacation." Langager v. Crazy Creek Products, Inc.,

287 Mont. 445, 455; 954 P.2d 1169 (1998). "[V]acation

pay which has been earned and is due and owing

must be considered in the same category as wages and

is collectable in the same manner and under the same

statutes as are wages." Id. at 453, citing 23 Op. Att'y

Gen. 151, 153 (1949), Morris v. C.C. Communications

Corp., 175 Mont. 23, 571 P.2d 1163 (1977).

Nebraska. "[A]ccrued vacation time, which is

part of an employment agreement, is due and

payable as wages upon termination of employment."

Roseland v. Strategic Staff Mgmt., Inc., 272 Neb. 434,

439; 722 N.W.2d 499 (2006); Neb. Rev. Stat. §481229(6).

Nevada. "Vacation and sick pay are forms of

deferred compensation." Kilgore v. Kilgore, 449 P.3d

843, 850 (Nev. 2019).

New

Hampshire."'[C]ourts

have

rather

consistently held that such items as... vacation and

holiday pay... are ...encompassed within the term

'wages.'" Appeal of Berlin Educ. Ass'n, NHEA/NEA,

125 N.H. 779, 784; 485 A.2d 1038 (1984). "[W]e

ascribed to the term 'wages' its plain and obvious

meaning of 'monetary remuneration by an employer

for labor or services.'" In re

State Employees'

Ass'n/Serv. Employees' Int'l Union, 170 N.H. 699,

185 A.3d 192 (2018).

New Jersey. "[V]acation with pay is in effect

additional wages." Owens v. Press Publ'g Co., 20

N.J. 537, 547; 120 A.2d 442, 446 (1956). 'It is beyond

dispute that an agreement to pay vacation pay to

employees made to them before they performed their

services, and based upon length of service and time

worked, is not a gratuity but is a form of

compensation for services, and when the services are

rendered, the right to secure the promised

compensation is vested as much as the right to

receive wages or other form of compensation." Textile

Workers Union v. Paris Fabric Mills (1952) 18 N.J.

Super. 421, 87 A.2d 458, 459; affd. 22 N.J. Super.

381; 92 A.2d 40, 41 (App. Div. 1952).

New Mexico. Vacation pay is compensation

like wages. Its non-payment is subject to the same

penalties as non-payment of wages under New

Mexico Section 50-4-4(C). Wolf v. Sam's Town

Furniture, Inc., 120 N.M. 603, 904 P.2d 52, 1995

NMCA 114 (N.M.App.1995). "Whenever an employer

discharges an employee, the unpaid wages or

compensation of such employee, if a fixed and

definite amount... shall, upon demand become due

immediately, and the employer shall pay such wages

to the employee within five days of such discharge."

Id. at 606. "Accrued vacation is based upon vacation

time earned" Id. at 608, cited by Langager v. Crazy

Creek Products, Inc., 287 Mont. 445, 455; 954 P.2d

1169 (1998)("[V]acation pay is earned by virtue of an

employee's labor and once it has accrued, it has by

definition been earned... [O]nce an employee has

accrued paid vacation pursuant to the terms of his or

her employment contract, an employer may not then

impose conditions subsequent which would, if unmet,

effectively divest an employee of that accrued

vacation").

New York. "[F]ormer employee was entitled to

payment for her unused vacation time." Marchionda

v. Indus. Bd. of Appeals of State, 2014 NY Slip Op

5065, 119 A.D.3d 1342, 989 N.Y.S.2d 214 (N.Y. App.

Div. 2014). Supplemental benefits such as vacation

pay, etc. are treated the same way as wages. Vandee

v. Suit-Kote Corp., 2022 NY Slip Op 4852 (N.Y. App.

Div. 2022).

North Carolina. "Vacation pay constitutes

wages.... Homespun honesty and simple justice

demand that [employees] should receive that part of

their vacation pay they had earned when their

employment was terminated." Calvine Cotton Mills,

Inc. v. Textile Workers Union of America, 238 N.C.

719, 723; 79 S.E.2d 181 (1953).

North Dakota. "[V]acation is in effect

additional wages, ...a vested right in vacation accrues

to the employee as earned" which is due at

termination unless forfeited according to the

expressly and clearly stated forfeiture provision.

State ex rel. Hagen for Benefit of Hopfauf v. Bismarck

Tire Center, Inc., 234 N.W.2d 224, 226 (N.D. 1975).

Ohio. "An employee who voluntarily elected to

receive and accepted vacation pay, received

'remuneration.'" Nunamaker v. U.S. Steel Corp., 2

Ohio St.2d 55, 206 N.E.2d 206, 31 O.O.2d 47 (1965).

An employee is entitled to his accrued vacation pay

after it is earned. Korsnak v. CRL, Inc., 2004 Ohio

6116 (Ohio Ct. App. 2004), unappealed. "[V]acation

pay is an earned benefit, such that the employee was

entitled

the

accrued

hours

termination. Vacation pay is not a gift or gratuity,

but rather a deferred payment of an earned benefit.

It seems [an employer] can no more withhold the

accrued vacation pay than, for example, it could hold

the last pay check the employee had earned but not

received." Id., ¶18-19.

Oklahoma. "'`Wages' means compensation

owed by an employer to an employee for labor or

services rendered, including salaries, commissions,

holiday and vacation pay.... Whenever an employee's

employment terminates, the employer shall pay the

employee's wages in full." Campbell v. Indep. School

Disct. No. 01, 2003 OK 73, 77 P.3d 1034 (2003),

citing 40 O.S.2001 §165.1(4), §165.3 in fn 18.

Oregon. Paid vacation, if offered, is considered

wages, and the unpaid accrued amount is due at

termination. State ex rel. Nilsen v. Or. State Motor

Ass'n, 248 Or. 133, 432 P.2d 512 (1967). "`Wage

claim' means an employe[e]'s claim against his

employer for compensation for his own personal

services,'" Id. quoting ORS 652.320(7).

Pennsylvania. "Compensation includes items

of remuneration received" including salaries, wages,

vacation and holiday pay, paid leaves of absence,

payments for unused vacation or sick leave...,"

O'Donnell v. Allegheny Cnty. N. Tax Collection

Comm., 266 A.3d 2,8 (Pa. 2021), citing 61 Pa. Code

§101.6(a). Wages include fringe benefits, such as

vacation pay. 43 Pa. Stat. Ann. §260.2a.

Rhode Island. Payment of unused vacation

time is equivalent to regular wage compensation and

is due at separation. Japonica Partners v. State, C.A.

No. 00-1393 (RI 5/7/2004), unappealed; citing R.I.

Gen. Laws §28-14-4(b), Massachusetts v. Morash, 490

U.S. 107, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989).

South Carolina. “'Wages' means all amounts

at which labor rendered is recompensed... and

includes vacation, holiday, and sick leave payments

which are due to an employee under any employer

policy or employment contract." Mathis v. Brown &

Brown of South Carolina, Inc., 389 S.C. 299, 698

S.E.2d 773 (2010), quoting S.C.Code Ann. § 41-1010(2) (Supp.2009). "The past tense of the word

“rendered” suggests services provided in the past.

The word “recompensed” too suggests that payment

is for labor already completed. See Webster's Third

New Int'l Dictionary 1897 (2002) (defining

“recompensed” in part, as “an equivalent or a return

for something done ... or given”). Other sections of

the Payment of Wages Act speak of acts done in the

past. See, e.g., S.C.Code Ann. §§41-10-40(D)(“Every

employer in the State shall pay all wages due at the

time and place designated.”); 41-10-50(“When an

employer separates an employee from the payroll...

the employer shall pay all wages due”); 41-10-80(C)

('In case of any failure to pay wages due to an

employee....'). The word “due” means “owed or owing

as a debt.” Id.

South Dakota. "A vacation with pay is in effect

additional wages." MEA/AFSCME Local 519 v. City

of Sioux Falls, 423 N.W.2d 164 (S.D. 1988).

Tennessee. "[V]acation pay is in effect

additional wages or compensation." They are due

employee at termination absent an express and

unambiguous forfeiture provision. A non-existing

forfeiture provision cannot be read into the contract.

Textile Workers Union of America, Local No. 513 v.

Brookside Mills, Inc., 7 McCanless 71, 203 Tenn. 71,

309 S.W.2d 371 (1957).

Utah. "[R]emuneration [i.e. wages] [come] in

the form of accrued vacation pay." Mills v. Gronning,

581 P.2d 1334, 1335 (Utah 1978). Also, "Unless the

employer specifically implements a use-it- or-lose-it

policy explicitly stating that leave does not accrue

and employees are not paid for unused leave, the

employer must pay the employee for any accrued,

unused leave on the employee's termination." (Utah

Admin.Code r.610-3-4.)

Vermont. "'Wages include every form of

remuneration payable for a given period to an

individual for personal services, including salaries,

...vacation pay....' Moreover, this Court has broadly

defined wages in other contexts to include most

forms of compensation for services rendered." Quinn

v. Pate, 124 Vt. 121, 124, 197 A.2d 795, 797 (1964)

(wages are synonymous with earnings and thus are

compensation for labor)." Stowell v. Action Moving &

Storage, Inc., 182 Vt. 98, 103; 2007 V.T. 46, 933 A.2d

1128 (2007).

West Virginia. Accrued vacation... benefits

constitute "compensation for work performed," which

must be paid to an employee. Farley v. Zapata Coal

Corp., 281 S.E.2d 238, 241 (W.Va. 1981). The term

"wages" shall also include then accrued fringe

benefits capable of calculation..., and must be

payable according to the agreed schedule or deferred

time. WV Code 21-5-1(c) & (l),3(a).

Washington. Employer must pay intermittent

employees vacation pay, absent an express provision

excluding them from such pay as its "vacation

ordinance does not specifically exclude intermittent

employees from paid vacation benefits" Scannell v.

City of Seattle, 97 Wn.2d 701, 703; 648 P.2d 435

(1982).

Wisconsin. "Vacation pay is in effect additional

wages.... [V]acation pay [is] compensation for work

performed..." Valeo v. J. I. Case Co., 18 Wis.2d 578,

584-585; 119 N.W.2d 384, 387-388 (Wis. 1963); Wis.

Stat. §109.01(3)).

Wyoming. "Wages. The compensation given to

a hired person for his or her services. Compensation

of employees based on time worked or output of

production. Every form of remuneration payable for a

given period to an individual for personal services,

including salaries, ...vacation pay, ...received from

the individual's employer or directly with respect to

work for him. Powder River Coal v. Dept. of Revenue,

WY 137, 145 P.3d 442, 448 (Wyo. 2006).

In summary, currently, there is no state in the

nation, other than Michigan, that would use its state

laws, with an express approval of its highest court, to

impair employment agreements by relieving

employers from their obligations to pay the already

earned and not forfeited vacation with pay/ PTO

compensation to their employees, while its state

agency would refuse to apply its mandatory

administrative adjudication standards, and provide

pay only to some similarly situated claimants, while

disregarding federal statutes, U.S. Circuit and U.S.

Supreme Court rulings that "[a]ccrued and

unpaid vacation allowances, "except for the fact of

deferral, ... are as much a part of regular basic

compensation as overtime pay or salary payments

made while the employee is on vacation; ...are not

contingent upon employment termination" (Morash,

Supra), and are due and payable at termination if

not paid soon after being earned.

CONCLUSION

Michigan WHD, as upheld by the Michigan

Supreme Court, violated Petitioner's constitutional

due process and equal protection rights, and the U.S.

Constitution Contract Clause while relieving

Respondent-Employer of its contractual obligation to

pay

Petitioner

his

already

earned

PTO

compensation. It had also decided important federal

questions of the states' impairment of the contractual

obligations, and the nature of the employees vacation

with pay/ paid time off compensation in a way that it

conflicted with the U.S. Constitution, the U.S.

Supreme Court's and federal Circuit Courts'

decisions, and federal statutes. It also is contrary to

decisions of all of the states' highest courts, which

ruled on such issues. Thus, the reasons for review

and resolution by this Court are compelling. By

resolving this Michigan Supreme Court's conflicting

and erroneous ruling, the U.S. Supreme Court's

holding in this case will serve as a precedent to

ensure that the states would not issue any unlawful

rulings regarding employees' already earned

compensation, whether in administrative or judicial

actions, so that employees can rightfully expect to

receive their compensation, already earned under the

express employment agreements, which cannot be

taken

away

through

the

application

unconstitutional, usurping state laws.

DATED this 22nd day of March, 2023.

Respectfully Submitted,

/s/ Elena A. Paremsky

_______________________________

Elena A. Paremsky (MI P62996)

Counsel Of Record

993 Bray Road,

Williamston, Michigan 48895

Tel. 517-575-7123

Attorney for Petitioner

CERTIFICATE OF WORD COUNT

Case No.

Case Name: Paremsky v. Ingham County Medical

Care Facility

Title:

Petition for a Writ of Certiorari

Pursuant to Rule 33.1(h) of the Rules of this

Court, I certify that the foregoing Petition for Writ of

Certiorari, which was prepared using Century

Schoolbook 12-point typeface, contains $8,995 words,

excluding the parts of the document that are

exempted by Rule 33.1(d). This certificate was

prepared in reliance on the word-count function of

the word-processing system (Microsoft Word) used to

prepare the document.

I declare under penalty of perjury that the

foregoing is true and correct.

DATED this 22nd day of March, 2023.

Respectfully submitted,

/s/ Elena A. Paremsky

__________________________

Elena A. Paremsky (MI P62996)

Counsel Of Record

993 Bray Road

Williamston, Michigan 48895

email: eparemsky@hotmail.com

Tel. 517-575-7123

Attorney for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.