How To Sue Your Employer in New York

Numerous federal and New York state laws apply to the employer-employee relationship in New York. They relate to many different aspects of employment, e.g., suffering injury on the job, not getting paid what is owed when it is owed, suffering discrimination on the basis of age, gender, or national origin. Some of the laws that might give an individual reason to sue their employer are discussed below.

On What Grounds Can I Sue My Employer?

An employee may have any number of grounds for suing an employer. If an individual has been fired, they want to have a legal consultation in New York to review the situation with a New York lawyer. Their lawyer can advise them about New York employment law and whether their employer has violated any of their rights under that law in terminating their employment.

If the employee had an express employment contract with their employer, a lawyer can advise them about whether the employer breached any provision of their contract. If the employer had policies and procedures regarding the terms of employment with them and how performance reviews should be done, they might create an implied contract that could have been breached. The employer could be liable for breach of an employment contract.

If an employee has been offered an employment contract by a prospective employer, they would want to have a New York lawyer review it and suggest any changes to terms that might unfairly favor the employer. The lawyer might negotiate some proposed revisions that they recommend.

An employee might get an attractive job offer from a competitor of their current employer. They might consult a lawyer about whether they can take the job or are prohibited by a non-compete provision that might be in their employment contract.

Other grounds for suing an employer are as follows:

• Military Leave and USERRA: Under the federal Uniformed Services Employment and Re-employment Rights Act (USERRA), New York employers may not fire an employee for taking military leave. A New York employer must reinstate an employee who leaves a permanent job for the purpose of completing military service.

However, such an employee must receive a certificate of completion, still be qualified for the job, and apply for re-employment in the specified time period: within 90 days of release from active military duty, within 10 days of release from temporary service such as annual training, within 60 days of release from full-time or active duty training.

• Discrimination: Some of the traits that a person may have that are protected by federal and New York law are the following:
  • Race
  • National origin or ancestry
  • Religion
  • Gender or gender identity (including transgender or non-binary)
  • Sexual orientation
  • Age (40 years old and up)
  • Disability
  • Marital status
  • Pregnancy.

If a person’s employment has been terminated for a reason that is discrimination on the basis of any of these characteristics, then the termination would be wrongful. Discrimination at work is prohibited just as discrimination in other contexts violates both federal and state law.

If an employee is subjected to quid pro quo harassment, they may be able to pursue legal action for discrimination against their employer. Sexual harassment is defined in federal law as a form of gender-based discrimination. If an employee is subjected to discrimination that creates a hostile work environment, they may have cause for submitting a complaint against their employer.

• Retaliation: In New York, an employee’s job may not be terminated because they exercised such rights as the right to claim worker’s compensation or to engage in whistleblowing regarding illegal activity on the job and other rights as well.

An individual has been the victim of wrongful termination if their employment was terminated because the individual took leave allowed by the federal Family and Medical Leave Act (FMLA). A person’s employment has been wrongfully terminated if it is done because the person took any type of leave to which they are entitled by law.

Under New York law, a court may assume that the termination of employment is wrongful if an employee is fired within 30 days of asking to use paid sick leave. The employer would have to prove that the firing was genuinely motivated by something other than the use of leave to escape a charge of wrongful termination.

• Wage and Hour Disputes: An employer may not fire a worker because they have complained about unpaid overtime or missed breaks for rest or meals.
• Worker’s Compensation Claim: An employer may not fire an employee because they have made a workers’ compensation claim. The employee would have to prove that, but for their workers’ comp claim, their employer would not have fired them.
• Protections of the Federal Fair Employment and Housing Act: An employee cannot be fired in retaliation for various actions, as noted above. In addition, an employee cannot be fired because they have complained of harassment or discrimination, have asked for accommodations for disability under the federal Americans with Disability Act (ADA) or a religious practice or participated in an FEHA hearing. Firing an employee who does any of the things could amount to illegal retaliation for whistleblowing.
• Occupational Safety and Health Concerns: An employer may not fire an employee who has submitted a report of a safety violation to the federal Occupational Safety and Health Administration. To do so would be retaliation under New York law.
• Back Wages and the Fair Labor Standards Act: The Wage and Hour Division of the federal Department of Labor (DOL) is the department of the federal government that enforces the federal Fair Labor Standards Act (FLSA). The FLSA sets the federal minimum wage, regulates overtime pay, recordkeeping, and youth employment standards for both private and public employees.
• Violation of the Equal Pay Act: An employer does not give equal pay for equal work may be in violation of the Equal Pay Act (EPA). The employee who is affected by the violation may sue their employer for discrimination.
• Age Discrimination in Employment Act: The federal Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against workers aged 40 and older on the basis of their age. This means that employers may not make decisions about the employment of a person who is 40 or older on the basis of the person’s age.
• Labor Union Organization: Of course, the employees of an enterprise may establish a labor union in their workplace. If an employer interferes in a union organizing campaign in ways that violate the National Labor Relations Act, the employees might sue the employer.
• Public Policy Violations: An employer violates public policy when they fire an employee for refusing to follow an order to do something illegal.

What Evidence Do I Need To Sue My Employer in New York?

As can be seen from the information above, an individual may have a claim or grounds to sue their employer for a variety of very different reasons. The type of evidence they would need would also vary depending on the nature of the claim or lawsuit they have. Generally, however, a person would want to collect any written documents that might be relevant, e.g., copies of their employment contract if they have one.

They would want to be sure they have a copy of their employer’s policies and procedures manual, again, if there is one. They would want to retain copies of any written communication, including emails and text messages, relating to their issue that were sent by the employer and employee in connection with the incident that give grounds for a complaint.

Lastly, an employee would want to identify any other people who have knowledge of the situation about which they want to complain. They would want to be sure to have the names of these witnesses and, if possible, reliable contact information for them.

If an employee had to get medical treatment for any type of physical harm they have suffered whether it is physical or emotional, they want to make sure they have copies of the medical records of their treatment. Contact a lawyer if you have questions regarding Occupational Health and Safety Regulations.

What Is the Legal Process for Suing an Employer in New York?

The legal process for suing an employer would vary depending on the nature of the claim. In some cases, an employee would have to file a claim with a government agency first before going to court. For example, claims of discrimination would be submitted to the federal Equal Employment Opportunity Commission (EEOC). Only if the EEOC gives the employee a “right to sue” letter, would the employee then file a lawsuit in court.

In other cases, an employee would file a lawsuit in the civil court in the county or city in which either they or their employer resident, transacts business. They could represent themselves but they would probably be better off hiring a New York attorney to represent them. In some cases, they might be able to recover attorney’s fees from their employer.

What Compensation Can I Recover Under New York Law?

The compensation that an individual can recover under New York law may vary a great deal depending on the reason for which an individual seeks compensation. Different theories of legal liability have different measures of compensation. Generally, however, the amount of compensation might be related to the kind of damages a person may recover for a claim under New York personal injury law.

The compensation might reimburse a person for lost wages, the cost of medical care for physical injury, if the victim suffered physical injury, and other economic losses that a person can prove that they suffered because of their employer’s conduct.

Do I Need a Lawyer for Help With a Workplace Dispute?

If you believe that you have grounds to sue your employer or former employer, you want to talk to a New York workplace lawyer. Your lawyer will review your situation and identify which type of claim you have. Your attorney can tell you how much your claim might be worth and the legal process you must pursue to get the remedy you deserve.