OPINION AND ORDER Plaintiff Kenneth J. Drummond (“Drummond” or “Plaintiff”) brings this action against Defendants The Johnson Company, Inc. (“The Johnson Company”) and Ira Akselrad (“Akselrad,” and collectively with The Johnson Company, “Defendants”), alleging claims under the New York Labor Law, as well as breach of contract and promissory estoppel. See Dkt. No. 1 (“Complaint” or “Compl.”). Defendants move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the third and fourth causes of action of the Complaint with prejudice. Dkt. No. 12. For the following reasons, the motion to dismiss is granted without prejudice to Plaintiff’s filing of an amended complaint. BACKGROUND The Court accepts the well-pleaded allegations of the Complaint as true for purposes of this motion. The Johnson Company is the private wealth management company established by the descendants of Robert Wood Johnson, the founder of Johnson & Johnson, for the purpose of providing, among other things, investment management, accounting support, estate planning services, and management of philanthropic activities for members of the Johnson family and related trusts. Compl. 7. Defendant Ira Akselrad is the President of The Johnson Company. Id. 1. Plaintiff became the Chief Financial Officer of The Johnson Company in 2006 and worked in that role until his employment was terminated in March 2021. Id.
1, 8. His job was to execute The Johnson Company’s financial strategy to build and manage the Johnson family’s wealth. His duties included, but were not limited to, working closely with Akselrad to develop financial plans; managing accounting policies, procedures, and practices; assisting with financial management of The Johnson Company’s businesses, ventures and investments, including the New York Jets; supervising the handling of accounts payable; assisting with the Johnson family’s philanthropic endeavors; and serving as a director of various Johnson family entities. Id. 9. Plaintiff’s lawsuit grows out of a change by The Johnson Company in or about 2017 to its policy concerning the accrual of unused personal time off (“PTO”), a dispute between Plaintiff and Akselrad regarding the application of the new policy to Plaintiff, and Defendants’ subsequent termination of Plaintiff’s employment. At the time Drummond began his employment with The Johnson Company in 2006, the company’s vacation policy allowed employees to accrue unused PTO, which carried over, on an unlimited basis, from year to year. Id. 10. Employees were then allowed to collect accrued and unused PTO in cash upon their separation from employment. Id. Initially, Drummond received four weeks of PTO per year, which was increased to five weeks of PTO per year after he had been employed for five years. Id. 11. In or about 2017, The Johnson Company changed its PTO policy and adopted a new policy set forth in The Johnson Company Employee Manual (the “Employee Manual”), effective January 1, 2017. Id. 12. The new policy (the “2017 Policy”) provided that employees could carry over up to five unused PTO days from the previous year and required employees to use the carried-over days before May 31 of the following year or to forfeit the carried-over PTO days. Id. 13. Plaintiff claims that he and other executive employees were grandfathered into the previous PTO policy and continued to accrue all of their unused PTO. Id. 14. He alleges that this was evidenced by pay stubs that he and the other executive employees received, which continued to indicate the accrual of PTO in excess of five unused, carried-over PTO days despite the adoption of the new PTO policy. Id. 15. On February 12, 2021, Plaintiff had a conversation with Akselrad about a salary increase. Id. 18. Akselrad regularly encouraged company employees to solicit offers for positions with other employers to “demonstrate their worth,” and in connection with their conversation regarding a salary increase, Plaintiff informed Akselrad that Plaintiff had received a potential job offer with a salary higher than what he was currently earning with The Johnson Company. Id.
