Employment in New York, as in most states, is at-will. This means that a person’s employment can be terminated at any time for almost any reason and even without justification. There are exceptions, of course. For example, if a person has a contract of employment that states the duration of the employment or what the grounds for termination are, then an employer must respect the contract or face a lawsuit for breach of contract.
In the absence of a contract, however, employers may terminate a worker’s employment at any time. And employees may quit whenever they wish, although it is generally considered smart to give advance notice. An employee always wants to maintain good relations with employers, even when leaving their job.
There are some important exceptions to this rule of at-will employment in New York state. It is illegal to terminate an employee for the following reasons:
- Discrimination: Termination of employment on the basis of discrimination for race, color, national origin, gender, pregnancy, religion, disability, age, marital status, AIDS/HIV, or sickle cell trait is not permitted by law;
- Sexual Harassment: An employee cannot be fired because the employee reports being a victim of sexual harassment;
- Whistleblower: An employee cannot be fired for being a whistleblower, e.g. reporting illegal conduct on the part of an employer to any interested party;
- Breach of Employment Contract: If the termination of a person’s employment is a breach of an employment contract, it is a wrongful termination. A contract can be an express contract between the employer and their employee. Or it might be implied by such circumstances as the employer’s policies and procedures or their practice of reviewing employee performance every year and continuing employment if the employee receives a favorable review;
- Union Bargaining Agreements: If an employee is a member of a union, then the employer-employee relationship is governed by a union bargaining agreement. Union bargaining agreements usually specify procedures that an employer must follow before an employee can be terminated. If an employer fails to honor a collective bargaining agreement, the employee can turn to their union for assistance.
What Are the Wrongful Termination Laws in New York?
Under federal law, employers cannot fire an employee because of their protected characteristic, such as race, color, national origin, sex, pregnancy, religion, age, disability, and citizenship status.
Under New York law as well, employers cannot discriminate based on race, color, national origin, sex, pregnancy, religion, disability, age, marital status, AIDS/HIV, or sickle cell trait. An employer cannot terminate a person’s employment for a discriminatory reason. Federal, state, and municipal laws all focus on preventing discrimination against members of protected classes. Termination for a discriminatory reason can be the basis for a lawsuit alleging wrongful termination under New York law.
As noted above, termination that is retaliation for a complaint of sexual harrassment or for whistleblowing, in breach of a contract, express or implied, or in violation of a union bargaining agreement would be wrongful termination per New York law. A termination that is motivated by retaliation for a worker’s compensation claim or for taking leave under the Family Medical Leave Act or for asserting other rights to which a person is entitled by law, all of these would give a person a reason to file a claim for wrongful termination.
What Are the Whistleblowing Laws in New York?
Under both federal law and the laws of New York state, employees have the right to report illegal conduct involving their employers that they witness on the job to the proper authorities. Reporting of this type by employees is often referred to as “whistleblowing.” The whistleblowing laws protect an employee from employer retaliation, such as termination of employment, for reporting corruption or other wrongdoing by the company.
Specifically, employers cannot retaliate against an employee in any way for doing any of the following:
- Disclosing or threatening to disclose to a public body or supervisor any violation on the part of the employer of a law, rule or regulation that creates substantial danger to public health and safety;
- Providing information to a public agency or testifying before a public body conducting an investigation or hearing into an employer’s illegal policy, illegal practice or dangerous practice;
- Calling out or refusing to participate in illegal activities in the course of their employment.
It is important to note that an employee who wishes to be protected under this law in New York State must first inform a supervisory employee of their employer of the violation. Then the employee must be given the employer a reasonable opportunity to correct the violation. If an employee finds themselves in this situation, they might want to consult an experienced New York employment lawyer for guidance as to how to proceed.
There are additional whistleblower protections in New York law. For example, there are specific protections for employees in the area of health care, public employees, commercial goods transportation, workers in the construction industry, workers who report discrimination on the basis of protected classes, employees of non-profit organizations, adult care facilities and schools.
If an employee has been a victim of impermissible whistleblower retaliation, they must generally file a complaint fairly quickly after the retaliation has taken place. There are varying deadlines depending on the industry, so a whistleblower who has experienced retaliation would want to consult an experienced New York employment lawyer right away.
What Are Public Policy Exceptions?
Again both federal and New York law prevent employers from terminating employment for reasons that are against the law. There are laws based on public policy concerns about discrimination and retaliatory termination by employers that prevent employers from terminating employees who are whistleblowers or victims of sexual assault.
New York employees are protected from firing in retaliation for reporting unlawful discrimination by their employer or for bringing a civil action for discrimination. However, the employee must have made their report or filed their civil action in good faith. If the employee knowingly makes a false claim of unlawful discrimination, the employee is not protected by the law.
Additionally, employees in New York cannot be terminated or otherwise disciplined for reporting violations of state labor laws. This includes reporting violations of health, safety and minimum wage laws.
Note that if an employer’s actions, policies, or practices appear to create a significant danger to the public, then an employee has a right to disclose these circumstances and not be subject to retaliatory termination by the employer.
What Can I Recover in a Wrongful Termination Lawsuit in New York?
New York law provides for an award of compensatory damages for employees who succeed with a wrongful termination lawsuit. Most importantly, the money damages award would cover the person’s lost wages, the value of lost benefits, pain and suffering, and possibly punitive damages and attorneys’ fees in some cases.
Employees who claim wrongful termination should remember that they have the duty to mitigate their damages. This means that the employee has responsibility for seeking new employment. They should also document all the steps they take to find a new job. This is important because a person may be entitled to the difference between the salary of the previous job and their new job. Also they might be able to include in compensatory damages the costs of seeking new employment.
For example, an employee fired due to a violation of the Family Medical Leave Act is entitled to recover double damages (twice the amount of lost pay) as well as legal fees and costs.
In New York City, the city’s human rights law provides employees with the right to collect unlimited punitive damages for any form of employment discrimination or sexual harassment.
There are other special provisions in New York law for remedies for whistleblowers and the victims of retaliation. For example, a worker who experienced retaliation for a worker’s compensation claim can be reinstated to their previous position, have privileges restored, receive payment of any lost compensation and be reimbursed for the costs of litigation and attorney’s fees.
Should I Consult an Attorney?
An experienced New York wrongful termination lawyer can help determine whether your experience justifies a claim of wrongful termination and whether you are entitled to whistleblower protection. Moreover, your lawyer can help you negotiate a resolution with your former employer if that is possible. If not, your lawyer can represent you in navigating the legal system and pursuing your rights in a court of law.