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.

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 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.

Wage and Hour Issues

New York Employees are entitled to a minimum wage of $8.75 per hour in 2015 and $9 per hour in 2016.  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.” It is illegal for employers to discriminate against employees who assert their rights under wage and hour laws. For more information, see New York Wage and Hour Laws.

Time Off Work

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 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. (To learn more, see Nolo’s FMLA page.) 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). For more, see  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 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.

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