In Anderson v. Peterson, Adv. No. 05-6520, 2006 Bankr. LEXIS 2327 (Bankr. N.D. Ga. July 7, 2007)(Diehl), the issue before the court, on summary judgment, was  "the legal issue of whether vacation pay which has accrued pre-petition but which was not payable until the occurrence of an event which took place post-petition is property of the estate."  The court answered in the affirmative.

… the Court must consider whether the Debtor had an enforceable contingent right to vacation pay under Georgia law. Georgia law does not require employers to provide their employees with vacation, and there are no statutory provisions which regulate the scheduling or payment for vacation time. 17 Ga. Jur. Employment and Labor § 3.37. A vacation plan offered by an employer and impliedly accepted by the employee by remaining in employment constitutes an enforceable contract. See Fletcher v. Amax, Inc., 160 Ga. App. 692, 695, 288 S.E.2d 49, 51 (1981) (citing Adams v. Hercules, Inc., 245 Ga. 464, 265 S.E.2d 781(1980)); Hercules, Inc. v. Adams, 150 Ga. App. 223, 257 S.E.2d 289 (1979). If the employee handbook requires that a specified amount of vacation is accrued as of a certain time, the Georgia courts will find that the employer is contractually obligated to compensate the employee for the vacation time earned. See Id.; see also, Ellison v. Dekalb County, 236 Ga. App. 185, 511 S.E.2d 284 (1999); Shannon v. Huntley’s Jiffy Stores, Inc., 174 Ga. App. 125, 329 S.E.2d 208 (1985). Even if there is no written agreement of employment, courts may enforce a customary practice of providing vacation pay. Anderson v. Chatham, 190 Ga. App. 559, 379 SE.2d 793 (1989). Neither party has presented evidence from which the Court could conclude as an undisputed fact that CSC either has or does not have a policy or practice with respect to the payment of vacation pay.

If CSC had such a policy or practice, Plaintiff would be entitled to judgment. See, e.g., In re Ryerson, 739 F.2d 1423 (9th Cir. 1984) (payment to debtor upon cancellation of insurance agency agreement was property of the estate even though contingent); Hill v. Muniz (In re Muniz), 320 B.R. 697 (Bankr. D. Colo. 2005); In re Taronji, 174 B.R. 964 (Bankr. N.D. Ill. 1994) (stock debtor obtained pre-bankruptcy but which became unrestricted post-bankruptcy as a result of the lapse of time was property of the estate to the extent that it was not related to the post-petition services of the debtor and thus excluded from "property of the estate" under section 541(a)(6)); In re Knight, 164 B.R. 372 (Bankr. S.D. Fla. 1994) (debtor’s interest in trust was property of the estate even though the interest was contingent on debtor’s survival and the Trustee’s disbursement of less than the full value of the trust during debtor’s lifetime); Bernstein v. Richardson, 34 B.R. 611 (Bankr. D. Colo. 1983); In re Nichols, 4 B.R. 711 (Bankr. E.D. Mich. 1980).

If CSC has no policy or practice and therefore the payment to a terminated employee of his or her unused vacation pay is totally discretionary, Defendant would be entitled to judgment. See, e.g., In re Ball, 201 B.R. 210 (Bankr. N.D. Ill. 1996) (where debtor had no contractual right to payment for accrued vacation and sick pay and payment was wholly discretionary, payment received was not property of the estate); In re Palmer, 57 B.R. 332 (Bankr. W.D. Va. 1986) (year-end discretionary bonus was not property of the estate); In re Dias, 37 B.R. 584 (Bankr. D. Idaho 1984) (trustee had no interest in discretionary disbursements but did have interest in corpus of trust which would vest post-petition).

Because the parties had no submitted sufficient evidence of the employer’s contractual duty, or absence thereof, to pay the vacation pay, cross motions for summary judgment were denied.