Although long considered a liberal jurisdiction in many areas of law, New York State staunchly adheres to the conservative "at-will employment doctrine", in employment matters. The doctrine holds that employers and employees not bound by a specific contractual agreement are in a work relationship that may be terminated by either party at will. Ergo, just as a non-contractual employee may quit his or her employment without having a reason to do so, an employer may terminate a non-contractual employee for good reason, no reason, but not for bad reason, i.e., discrimination, or violation of the law.
Many federal, state and local laws regulate the work place and the conduct of employers and employees. These laws in general pertain to preventing discrimination, providing employees with fair compensation for their labor, and safeguarding employee health, safety and privacy at the workplace. To make a claim for wrongful termination, an employee must be able to establish: (1) an employment contract, or defacto employment contract, has been breached, and/or (2) they were terminated because of discrimination, and/or (3) a New York State Statute has been violated by their termination, and/or, (4) they were the victim of a civil wrong. Alternatively, to guard against such lawsuits, employers must set policy and establish guidelines and procedures to manage their risk of liability for firing an employee.
DiscriminationEmployment discrimination occurs when an employee is harassed or otherwise treated unfairly because of his or her race, national origin, sexual orientation, religion, disability, age, gender, sex, color, creed, mental status, or criminal history. Employers must recognize that it is often easier for them to incur liability for retaliating against an employee that brings a discrimination claim, than for them to incur liability because of the actual claim. Documentation is critical to either proving or disproving a claim of employment discrimination. Aggrieved employees must document the "who, what, when, where, how and why" for their complaint of discrimination. Employers on the other hand should document and accurately evaluate employee performance on a regular basis and not hesitate to point out deficiencies.The Federal Equal Employment Opportunity Commission ("EEOC"), the NYS Division of Human Rights and the NYC Commission of Human Rights investigate employee claims of discrimination and render decisions on whether there is some basis to believe, the standard being "probable cause to believe", that discrimination has occurred. If probable cause is established, the aggrieved employee will receive a "right to sue" letter for EEOC claims allowing him or her to commence a lawsuit in federal court. In these cases, the EEOC will prosecute the employer at the agency level on its own. However, if a negative finding is rendered by the EEOC, the aggrieved employee may still commence a lawsuit in federal court once he or she receives the "no probable cause - right to sue" letter. Of course, there will be no EEOC prosecution in cases where the agency finds no probable cause to believe that discrimination has occurred.If probable cause is established in a New York State claim, a public hearing is held to determine the appropriate award. Employers and employees may proceed to voluntary arbitration at the state level. However, filing a claim with the New York State Division of Human Rights constitutes an "election of remedies", which precludes a subsequent state court action unless the state agency dismisses the claim for "administrative convenience." In New York City, the Human Rights Commission prosecutes a finding of probable cause. Employers and employees may usually negotiate a settlement.The following Statute of Limitations apply to employment discrimination cases:- State Discrimination suit - S.O.L - three years - 1 year to bring claim to Division of Human Rights.
- Title VII or ADA claims must be filed in NY with the EEOC within 300 days of the discriminatory act.
- Filing with NYS Division of Human Rights is generally deemed filling with the EEOC.
It is important to note that an employee could initially proceed to negotiate a claim with an employer directly but must remain cognizant of his or her time to report the case to the appropriate administrative agency. The Statute of Limitations is calculated from the last day/instance that a discriminatory act occurred.
Other LawsThe federal minimum wage requirements and federal and state laws requiring overtime pay provide for fair compensation for employees. In addition to fair compensation, employees in New York Sate are guaranteed certain benefits concerning family and medical leave, work related injuries, continued coverage of health benefits when employment is terminated, unemployment benefits, and Social Security Insurance.Employers are required to maintain a fair and healthy work place. There are statutes requiring employees to receive notice of any dangerous conditions in the work place and preventing smoking in the workplace. Many of these obligations imposed on employers are required by the Federal Occupational Safety & Health Act, also known as OSHA. The American with Disabilities Act ("ADA") provides that employers must make accommodations for disabled persons who are otherwise qualified to perform their jobs.Additionally, employers must recognize an employee's right to privacy. Generally, employers may not eavesdrop on employees or force them to take a polygraph examination. However, employees should note that Title II of the Electronic Communications Privacy Act ("ECPA") allows an employer that provides voice mail and e-mail service for his or her employees, to access those communications that have been received and stored. An employee's privacy is protected by law for reporting ("whistle-blowing") government abuse at the work place and retaliation against that employee by an employer may be severely punished.Finally, employees who are injured in the work place because they are assaulted by co-workers, or who received serious physical injury because of a co-worker's negligence may bring lawsuits under state common law tort claims like assault and battery, negligent hiring and retention of an unfit employee, as well as claims for emotional harm.
Contractual EmploymentEmployers may not fire employees with employment contracts or implied contracts (implied via employment manuals and/or handbooks) "at will." If so, the employee may sue under state law for breach of contract. Almost any employment arrangement in compliance with the law may constitute an employment contract. The courts, however, closely scrutinize contracts with non-competition clauses that restrict a former employee's future employment. New York State generally disfavors these restrictions unless they are reasonable, individualized and: (1) limited in time and geography, (2) concern an employee who provides highly specialized or extraordinary services or is privy to company trade secrets, and (3) is necessary to protect the employer's legitimate interest. Employers and employees with contracts containing non-competition clauses may see the non-compliant restrictive clause struck down by the courts, while the rest of the contract upheld. Alternatively, the court may strike the agreement in its entirety.
PostscriptGood faith and fair dealing by both employer and employee will prevent many employment disputes. This is critical because the cost of litigation may be very expensive for both sides. Employers should give clear communication of responsibilities, procedures and policy, beginning from when employment is first advertised and continuing throughout the application process and during actual employment. If necessary, an employer should seek advice concerning compliance with all of the aforementioned employment laws. Alternatively, employees should be forthright with employers about their complaints, reasonable in their request for relief, and document all such communications. Both sides should honestly communicate with one another throughout the employment relationship.An attorney will consider many things before deciding to accept an employment case. Potential claimants should know that the merits of the claim will be considered in terms of both the law and the facts in their case. Additionally, an attorney must consider how he or she may be compensated in each individual case. In federal discrimination cases, there are statutes that provide for the losing side to pay the cost of litigating the claim. This is not the case in state discrimination cases. Finally, the greatest concern for both the attorney and claimant is appropriately whether they can work well together.
U.S. Equal Employment Opportunity Commission
New York District Office
Location: 33 Whitehall Street, 5th Floor
New York, NY 10004
Phone: 1-800-669-4000 Phone: 1-800-669-4000 Fax: 212-336-3790 TTY: 1-800-669-6820 Director: Kevin J. Berry Regional Attorney: Elizabeth Grossman Office Hours: The New York District Office is open Monday-Friday from 9:00 a.m. - 5:00 p.m. Intake hours are Monday - Friday, from 9:00am to 3:00 pm. We encourage you to call our 800 number listed above for information, and pre-screening by an intake information representative before you visit our office.
Many federal, state and local laws regulate the work place and the conduct of employers and employees. These laws in general pertain to preventing discrimination, providing employees with fair compensation for their labor, and safeguarding employee health, safety and privacy at the workplace. To make a claim for wrongful termination, an employee must be able to establish: (1) an employment contract, or defacto employment contract, has been breached, and/or (2) they were terminated because of discrimination, and/or (3) a New York State Statute has been violated by their termination, and/or, (4) they were the victim of a civil wrong. Alternatively, to guard against such lawsuits, employers must set policy and establish guidelines and procedures to manage their risk of liability for firing an employee.
Discrimination
Employment discrimination occurs when an employee is harassed or otherwise treated unfairly because of his or her race, national origin, sexual orientation, religion, disability, age, gender, sex, color, creed, mental status, or criminal history. Employers must recognize that it is often easier for them to incur liability for retaliating against an employee that brings a discrimination claim, than for them to incur liability because of the actual claim. Documentation is critical to either proving or disproving a claim of employment discrimination. Aggrieved employees must document the "who, what, when, where, how and why" for their complaint of discrimination. Employers on the other hand should document and accurately evaluate employee performance on a regular basis and not hesitate to point out deficiencies.
The Federal Equal Employment Opportunity Commission ("EEOC"), the NYS Division of Human Rights and the NYC Commission of Human Rights investigate employee claims of discrimination and render decisions on whether there is some basis to believe, the standard being "probable cause to believe", that discrimination has occurred. If probable cause is established, the aggrieved employee will receive a "right to sue" letter for EEOC claims allowing him or her to commence a lawsuit in federal court. In these cases, the EEOC will prosecute the employer at the agency level on its own. However, if a negative finding is rendered by the EEOC, the aggrieved employee may still commence a lawsuit in federal court once he or she receives the "no probable cause - right to sue" letter. Of course, there will be no EEOC prosecution in cases where the agency finds no probable cause to believe that discrimination has occurred.
If probable cause is established in a New York State claim, a public hearing is held to determine the appropriate award. Employers and employees may proceed to voluntary arbitration at the state level. However, filing a claim with the New York State Division of Human Rights constitutes an "election of remedies", which precludes a subsequent state court action unless the state agency dismisses the claim for "administrative convenience." In New York City, the Human Rights Commission prosecutes a finding of probable cause. Employers and employees may usually negotiate a settlement.
The following Statute of Limitations apply to employment discrimination cases:
- State Discrimination suit - S.O.L - three years - 1 year to bring claim to Division of Human Rights.
- Title VII or ADA claims must be filed in NY with the EEOC within 300 days of the discriminatory act.
- Filing with NYS Division of Human Rights is generally deemed filling with the EEOC.
It is important to note that an employee could initially proceed to negotiate a claim with an employer directly but must remain cognizant of his or her time to report the case to the appropriate administrative agency. The Statute of Limitations is calculated from the last day/instance that a discriminatory act occurred.
Other Laws
The federal minimum wage requirements and federal and state laws requiring overtime pay provide for fair compensation for employees. In addition to fair compensation, employees in New York Sate are guaranteed certain benefits concerning family and medical leave, work related injuries, continued coverage of health benefits when employment is terminated, unemployment benefits, and Social Security Insurance.
Employers are required to maintain a fair and healthy work place. There are statutes requiring employees to receive notice of any dangerous conditions in the work place and preventing smoking in the workplace. Many of these obligations imposed on employers are required by the Federal Occupational Safety & Health Act, also known as OSHA. The American with Disabilities Act ("ADA") provides that employers must make accommodations for disabled persons who are otherwise qualified to perform their jobs.
Additionally, employers must recognize an employee's right to privacy. Generally, employers may not eavesdrop on employees or force them to take a polygraph examination. However, employees should note that Title II of the Electronic Communications Privacy Act ("ECPA") allows an employer that provides voice mail and e-mail service for his or her employees, to access those communications that have been received and stored. An employee's privacy is protected by law for reporting ("whistle-blowing") government abuse at the work place and retaliation against that employee by an employer may be severely punished.
Finally, employees who are injured in the work place because they are assaulted by co-workers, or who received serious physical injury because of a co-worker's negligence may bring lawsuits under state common law tort claims like assault and battery, negligent hiring and retention of an unfit employee, as well as claims for emotional harm.
Contractual Employment
Employers may not fire employees with employment contracts or implied contracts (implied via employment manuals and/or handbooks) "at will." If so, the employee may sue under state law for breach of contract. Almost any employment arrangement in compliance with the law may constitute an employment contract. The courts, however, closely scrutinize contracts with non-competition clauses that restrict a former employee's future employment. New York State generally disfavors these restrictions unless they are reasonable, individualized and: (1) limited in time and geography, (2) concern an employee who provides highly specialized or extraordinary services or is privy to company trade secrets, and (3) is necessary to protect the employer's legitimate interest. Employers and employees with contracts containing non-competition clauses may see the non-compliant restrictive clause struck down by the courts, while the rest of the contract upheld. Alternatively, the court may strike the agreement in its entirety.
Postscript
Good faith and fair dealing by both employer and employee will prevent many employment disputes. This is critical because the cost of litigation may be very expensive for both sides. Employers should give clear communication of responsibilities, procedures and policy, beginning from when employment is first advertised and continuing throughout the application process and during actual employment. If necessary, an employer should seek advice concerning compliance with all of the aforementioned employment laws. Alternatively, employees should be forthright with employers about their complaints, reasonable in their request for relief, and document all such communications. Both sides should honestly communicate with one another throughout the employment relationship.
An attorney will consider many things before deciding to accept an employment case. Potential claimants should know that the merits of the claim will be considered in terms of both the law and the facts in their case. Additionally, an attorney must consider how he or she may be compensated in each individual case. In federal discrimination cases, there are statutes that provide for the losing side to pay the cost of litigating the claim. This is not the case in state discrimination cases. Finally, the greatest concern for both the attorney and claimant is appropriately whether they can work well together.
New York District Office
| Location: | 33 Whitehall Street, 5th Floor New York, NY 10004 Phone: 1-800-669-4000 |
| Phone: | 1-800-669-4000 |
| Fax: | 212-336-3790 |
| TTY: | 1-800-669-6820 |
| Director: | Kevin J. Berry |
| Regional Attorney: | Elizabeth Grossman |
| Office Hours: | The New York District Office is open Monday-Friday from 9:00 a.m. - 5:00 p.m. Intake hours are Monday - Friday, from 9:00am to 3:00 pm. We encourage you to call our 800 number listed above for information, and pre-screening by an intake information representative before you visit our office. |
