as wages earned and here we have a policy where matthew white collar earned one hundred and twenty hours a day cation pay at the the very start of the year he was entitled to one hundred and twenty hours to use it theory because of the some prior case law under raul and richardson and it's really important that we understand the whole thing in richardson problem and richardson and how this backs really differ from the facts here in gravel i dealt with a number of employees who were not a magical entitle to the vacation pay that they were claiming they sort of had to you know incrementally accrue that benefit so it wasn't something that they were entitled to use right away if they requested cation time and they didn't have it accrued that they cation time would be denied so you know they were seeking more than they were entitled to at the time that they left employment so that's really a significant distinction here because i think the language that was use in brow law and in this case from reality with that entitlement to payment is governed soley by terms of the employment once you're entitled explain the sciri that you're entitled your client was entitled to this especially in light of the company policy absolutely so you know every company has their own policy as to when you are entitled to pay this company did not qualify entitle men to his vacation pay at any rate so i think they had separate entitlement for salaried qualification in the company policy qualification being that if you will even haven't used it you lose the why is that more a qualification like any other qualification because this statute specifically prohibit you know how you crew something or whether you are able to roll over something that they're saying once you earn it it's years and it needs to be paid out so not it counts all now confused you're saying it doesn't matter what the company policy is because he has an absolute right under the statute is that the argument i had thought your argument was that the company provides an extension which of the two series is it well i think it's a little bit of both i mean i can't really choose either because i think that the policy is a bit ambiguous as to you know they pick and choose employees that they do pay out these nikkei's are located then the st proposition has to be wrong because if there is an ambiguous policy that he is not entitled to it then there is no statutory right under maine law correct well the difference here is that there is no ambiguity as to whether or not he was entitled to speak asian pay and that's really the issue i and so once the company says that you entitled to use it at your discretion at that moment it's locked in for purposes of the statute and anything that a company policy that would say they can then take it back upon your leaving is just inconsistent with polic where as they carry over or future earning type thing the entitlement never kicks in because it's never best even under the policy itself that's the idea exactly very very well worded that's exactly what i'm trying to say here it's never ruled on that question one makes excuses why richardson and raul really don't apply here because it's just a completely separate issue and i think using  reasoning from the lower court he just kind of he missed the point here that this is a completely separate employment situation that's you know if any states with similar statutes have held that those statutes don't prohibit and you may proceed good morning may it please the court my name is melinda catherine and i am here on behalf of the hewlett packard enterprise this appeal involves to express written policies which defeat whites claims for the pay and bonus compensation as the district court concluded there are no genuine disputes about these dispositive facts and as a result summary judgment was properly granted each piece vacation policy provides in   part employees are strongly encouraged to use all of their vacation each year if you leave h p for any reason either voluntarily or involuntarily you will not receive pay in lieu of unused vacation all  forfeited at the time of your separation here it is understood it would be pure to say that prior to his leaving he was entitle to use the pay that's being taken away he could have used  employment because the the policy specifically provides that if you don't use it during your employment it will not paid out upon termination and the main law court has repeatedly said that that is and that is appropriate and as i understand it just bear with he have been entitled to use it before he left he could have used his i know he had but he would have been entitled to use it wouldn't it be before he left but before he left and he and  voluntarily resigned so he could have used his vacation before he left he had that option he was entitled to do that right he wasn't he was entitled to use the his vacation prior to his resignation and that's not true of the plaintiffs in either of the main was he was not entitled under the contract to use the vacation time he was seeking to use prior to leave because he had already worked at it because it was carry over time right that's not correct the inn in richardson he could have used the time but but the the provision in the contract said that he would only be paid out thirty hours of of that upon trauma nation so it was in fact it acted as a former chair and in a royal versus jones in vining they specifically addressed the issue that is presented here it says we next turn to the plane to nd argument that because our invocation pay has the status of wages rather than a gratuity cannot be interpreted to divest plaintiffs of earned vacation benefits we disagree so they may address that specific issue is there any state you're aware of that upheld a claw back provision under a statute like this and no nebraska has you're required to pay the accrued but and use vacation out upon terminations of employment and maine is not one dollar of those states that the maine law court and the department of labor have repeatedly said that and that's been the law for over thirty years so so the the and they fired you and then you lose all that earned time and under your account may not say that's fine correct and there's a reason to be somewhat concerned about reading the statute to have sanction during the record in a light most favorable to white who would argue that the bonus program was nondiscretionary the district court found that a contract existed the district court also noted that both parties had proceeded on the premise that the written terms of the market share bonus program were binding as a result the district court correctly concluded that white's unjust enrichment and quantum claims were barred by the contract and additional summary judgment h p argued that the party shared a contractual employment relationship including sales incentive compensation and that the undisputed written terms of the market share bonus per program ended on a specified date of october thirty one two thousand and fourteen h p further argued that the plain language that the market share bonus precludes payment in his opposition white completely failed to respond to each piece argument regarding the expiration of the bonus program and therefore waived any argument any challenge that to that argument this failure alone was grounds for the dismiss of white's bonus claim and regardless of whether the market share bonus is construed as a contract white has failed to present evidence that could establish his entitle me to additional payment under theories of quantum merit or on just enrichment does not present any evidence that he performed any service or conferred any benefit on h p beyond what was already expected of them and what he was fully compensated to do and edition white has not demonstrated a reasonable expectation of additional compensation whites only source of that expectation for the bonus came from the written bonus program offered by h p that written bonus program clearly an indisputable he ended on october st at two thousand and fourteen white simply contend that he was confused by the operation of h p s bonus program what's confusion cannot support a claim that he had a reasonable expectation of bonus compensation for the cisco market share bonus during the last calendar quarter of two thousand and fourteen finally chose to end the market share bonus on october thirty one of two thousand and fourteen h p s actions transparently communicated that it no longer considered changes in the cisco market share as a benefit that it would appreciate and i'd be happy to respond to issue and just really highlight the fact that the a cruel section of the personnel file to the extent that you know we're looking at how the vacation pay was a crude that was a completely separate section of the personnel policies from the forfeiture policy it was completely separate so you accrue over here you forfeit down here and i think we can just separate the two and once accrued it cannot be forced under th some of the main retirement it's also carrying case that was a year or two year contract so he only had that that principal had a contract for one year he was only entitle to continued his employment based on different employment expect expectations you're next point my next point going to this  i'm just in richmond theory based on the bonus program it was it was an extremely confusing not bonus program and we're really looking at everything after october twenty four team because after that is when we get into the issue where the management are so confused by the bonus program in the terms of it that they tell their team they're still eligible for this bonus and the team needs those expectation unknowingly they canceled the program and nobody communicated that to the team until they came with the expectation of payment and that payment wasn't there and you know really glossed over a significant record which led to the confusion you have this management team actually look packard who says we need to change this plan it's tedious hire additional action it will not follow systematic not be rewarded for having such a confusing bonus program that not only do their voices not understand what the terms of it are not their title suit the management and those executing and paying out almost planned don't understand the terms of it and can conflict truly communicating to their employees that there is an expectation to be paid under this plan if they meet certain metrics or want to just go back to determine what could you just talk maybe you explain what the difference between these two things is if i understand your account of the retirement plan case but retirement case it was before the made law court you said it was an annual contract so the idea that chart provided that you would lose the case in time you accrued at the end of the contract correct i think it dealt with a rollover so you know from year to year and allowed to roll over a certain vacation hank but if you were to retire and not renew your contract you were only going to get your contract and you only get thirty hours of it i don't really understand the difference between those two things because if you look at what he was entitle to i'm not saying that year it was significantly different than what he was claiming he was intended to her also if you look at and i'm not sure exactly what the hours were i think it was one hundred and eighty hours he thought he was entitled to a significant number of those hours have rolled over from previous years and was any of over thirty as i read the they would say he couldn't get even though he was entitled to within that year so how is that different in your situation because that seems just like a corporate your provision like this one well if you look at what he was entitle to for that year's contract he was not entitled to one hundred and eighty years in math one hundred and eighty hours in that year those were previous hours that he had earned in separate years under separate contracts but if you look under that mine years contract he had something like eighty hours and you know others had he had used other hours from other years so it's a different employment situation is a different employment agreement anything else concludes the argument in this case attorney quinlan and attorney katherine you should disconnect from the hearing at this time