New York Wrongful Termination Laws

Have you recently lost your job? If so, you might be wondering whether you have grounds for a wrongful termination lawsuit. In New York, as in other states, employees work at will. This means an employee can generally be fired at any time and for any reason, or for no reason at all.

But there are some exceptions to the at-will rule. For example, if your New York employer fires you for discriminatory reasons, in violation of an employment contract, or in retaliation for exercising your rights, you may have a legal claim against your employer for wrongful termination.

What If You Were Illegally Fired During the Coronavirus Pandemic?

A shocking number of Americans have lost their jobs as a result of the economic downturn stemming from the COVID-19 pandemic. But what if you were fired during the pandemic? Depending on the reason you were dismissed, you might have a valid claim for wrongful termination. For instance, it would generally be illegal for your employer to fire you:

• in retaliation after you complained about or reported unsafe working conditions, such as inadequate personal protective equipment (PPE), social distancing, or cleaning
• for refusing to work because you had a reasonable belief that you faced an immediate risk of death or serous physical harm due to unsafe working conditions
• for refusing to violate a legal shelter-in-place order
• for taking family or medical leave under state or federal law, including the Families First Coronavirus Response Act (FFCRA) and the federal Family and Medical Leave Act (FMLA) (discussed below)
• because you have a preexisting condition (including your age) that makes you more vulnerable to the coronavirus, or
• because you filed a claim for workers' compensation benefits for COVID-19.

Also, if you were essentially forced to quit your job because of serious coronavirus-related safety hazards that put you at risk, you might have grounds to sue your employer for "wrongful constructive termination" in violation of public policy. In order to succeed with this argument, you would generally have to show that your former employer intentionally created or allowed working conditions that violated public policy (such as laws requiring a safe work environment) and were so intolerable that any reasonable person in your position would have been compelled to resign. (Learn more about wrongful termination in the context of COVID-19.)

Every state's laws on wrongful termination are different. This article covers some of the common legal grounds you might have for suing your New York employer for wrongful termination. But it's not a comprehensive list of New York employment rights, which can change as courts issue new rulings and legislators pass or modify laws. To find out the full extent of your claims, speak to an experienced New York employment lawyer. To learn more about New York employment law, contact the office of the New York Department of Labor.

Discriminatory Firing

Under federal law, it is illegal for an employer to fire an employee based on a protected characteristic. Federal law prohibits employers from firing employees based on race, color, national origin, sex, pregnancy, religion, age (if the employee is at least 40), disability, citizenship status, or genetic information. However, only employers with a minimum number of employees must comply with these laws. Most types of discrimination are prohibited once an employer has at least 15 employees. However, for age discrimination the minimum is 20 employees, and for citizenship status discrimination the minmum is four employees.

New York law prohibits employment discrimination based on race, color, national origin, sex, pregnancy, religion, age (18 and older), disability, genetic information, sexual orientation, marital status, gender identity, arrest and conviction record, military status or service, observance of Sabbath, political activities, unemployment status, or status as a victim of domestic violence. New York employers must comply with these laws if they have at least four employees.

These laws also make it illegal for an employer to retaliate against you for asserting your rights. For example, if you complain to your company's HR department that you believe you were passed over for promotion because of your age, your employer may not discipline or fire you for your complaint. Likewise, your employer cannot fire you for participating in an investigation of a discrimination complaint (no matter who made the complaint), testifying in court, or making other efforts to stop discriminatory practices.

Before filing a discrimination or retaliation lawsuit, you must file a complaint with the appropriate government agency. The New York Division of Human Rights enforces the state's laws prohibiting discrimination. In many cases, state fair employment practices agencies will record your complaint with the Equal Employment Opportunity Commission (EEOC), the agency that enforces federal antidiscrimination laws. However, you should check to make sure. If not, you may also have to file a complaint with the EEOC; you can find contact information for the nearest office at the EEOC's Field Offices page.

Breach of Employment Contract

If you have a written employment contract promising you job security, you are not an at-will employee. New York also recognizes employment contracts based on oral promises supported by documentation or statements in an employee handbook, which an employee reasonably relied upon. For example, if your employee handbook says that you won't be fired unless certain disciplinary steps are taken, your employer may have to follow the promised steps before firing you. If you have an employment contract, and your employer fires you without good cause, you have a legal claim for breach of contract.

New York Wage and Hour Laws and Issues

It is illegal for employers to discriminate against employees who assert their rights under wage and hour laws. Employees in New York state are entitled to a minimum wage of $11.80 an hour in 2020, although New York City workers are generally entitled to $15.00 an hour. To find the rate that applies to you, use the New York Department of Labor's minimum wage calculator.

Under federal and New York law, employees who work more than 40 hours a week are eligible for overtime. New York also gives employees the right to an unpaid meal break. The time and length of the break depends on the type of work. Employees who work in retail or for a commercial business are entitled to a 30-minute meal break, while factory employees are entitled to a 60-minute meal break. Under federal law, employers who choose to offer breaks of 20 minutes or less must pay employees for that time. Employers also must pay their employees for any time during which they must work, even if the employer characterizes that time as a "break." For more information, see New York Wage and Hour Laws.

Time Off Work in New York State

State and federal laws give employees the right to take time off work for certain civic obligations and personal responsibilities. Employers may not discipline or fire workers for exercising these rights. In New York, these rights include:

• Military leave. Under federal law, employees have the right to take up to five years of leave to serve in the military, with the right to be reinstated when they return to work. (This law also prohibits discrimination against employees based on their military service, protects employees from discharge without good cause for up to one year after they return from military duty, and provides other protections; see Nolo's article Taking Military Leave for more information.) Under New York law, members of the U.S. Armed Forces or organized militia may take unpaid leave for active service, reserve drills or annual training, service school, or initial full-time or active duty training, with reinstatement when service is complete. Once reinstated, an employee may not be fired without cause for one year. New York also prohibits discrimination against employees who are subject to state or federal military duty.
• Jury duty. In New York, employees are entitled to leave for jury duty. Employers with 11 or more employees must pay the first $40 of wages for the first three days of an employee's jury service. Employers who fire or penalize employees for jury duty may be subject to criminal sanctions.
• Voting. Under New York law, employees are entitled to take up to two hours of paid leave to vote, unless the employee has four consecutive non-work hours when the polls are open before a shift starts or after it ends.
• Family and medical leave. New York employees are protected by the federal Family and Medical Leave Act (FMLA). The FMLA requires employers with 50 or more employees to provide eligible employees with up to 12 weeks off, unpaid, every year for a serious health condition, to care for a family member with a serious health condition, to care for a new child, or to handle certain practical matters arising out of a family member's military service. Employees can take up to 26 weeks off in a single year to care for a family member who is seriously injured while serving in the military. Employees who take FMLA leave must be reinstated to the same position once their leave is over. New York law requires that employers make the same leave available to adoptive parents as they do to biological parents. New York is also one of a handful of states that offers a temporary disability insurance program, which pays employees a percentage of their usual wages while they are temporarily unable to work because of a disability, including pregnancy. (Learn more about New York Family and Medical Leave.)
• Military spouse leave. Employers with 20 or more employees must provide employees with up to ten days of unpaid time off each year to spend time with a spouse who is on leave during a military deployment.
• Other protected leave. New York also provides time off for a variety of other reasons, including blood donation (employers with 20 or more employees), bone marrow donation (employers with 20 or more employees), and domestic violence (employers with four or more employees).

Other State Employment Claims

• Workers' compensation. Employers may not fire or otherwise retaliate against employees because they file workers' compensation claims.
• Workplace safety. Employers are prohibited from discriminating against employees who make complaints of workplace safety violations, testify in related legal proceedings, or exercise any legal rights under workplace safety laws.
• Whistleblowing. Employers cannot fire an employee for reporting, or threatening to report, illegal activity at the workplace; participating in a government investigation or testifying in a hearing; or refusing to participate in illegal activity.
• Off-duty conduct. Employers may not fire employees who use lawful products, or engage in legal activity, while off-duty and away from the workplace.

What to Do Next

If you think you were fired illegally, talk to a New York employment lawyer. A lawyer can help you sort through the facts and assess the strength of your claims. A lawyer can also inform you of other state or local claims that you may have in addition to those listed above. Whether you want to try to get your job back, negotiate a severance package, or sue your employer in court, a lawyer can walk you through your options and help you decide on how best to proceed.