Updated: June 30, 2020
Wrongful termination is a claim that can be brought if an employer impermissibly or improperly terminates someone’s employment. The claim encompasses various unlawful reasons for termination.
Generally, New York is an “at-will employment” state, which means that a private-sector employer can terminate an employee for any reason at any given time, absent an employment agreement to the contrary. While such broad discretion to fire or quit “at will” allows for flexibility on both sides of the coin, employers cannot fire an employee for the wrong reason. An employer who engages in wrongful termination may be subject to statutory penalties, and/or payment of damages based on lost wages, lost benefits, emotional distress and attorneys’ fees.
FOR EXAMPLE, EMPLOYMENT CANNOT BE TERMINATED BY AN EMPLOYER BASED ON THE EMPLOYEE’S:
Membership in a protected class, including: (1) race; (2) ethnicity; (3) age; (4) sex; (5) physical or mental disability; (6) veteran status; (7); citizenship; or (8) religion.
Participation in legal recreational or political activities outside of work
Membership in a union
Complaints to the employer or the commissioner of labor regarding violations of New York Labor Law; or
Engagement in protected activities such as whistleblowing.
COMMON EXAMPLES OF WRONGFUL TERMINATION:
Discrimination is unlawful, and employers may not use it as a basis for an employee’s termination. The following are common types of discrimination in the workplace, which New York State and Federal law prohibits:
Gender and Gender Identity Discrimination
Age Discrimination (40 and over)
Employers may not terminate an employee as retaliation in response to them advocating for their rights or alleging improper conduct, such as discrimination.
For instance, employees have the freedom to participate in legal recreational or political activities on their own time, outside of work, and may not be terminated for engaging in such activity. An employer may also not terminate an employee for complaining about a New York Labor Law violation to their employer, co-worker, attorney general or Department of Labor.
Employees are also protected from termination for joining, forming or supporting a union. Furthermore, employees are protected from termination for acting with coworkers to try to improve their working conditions or pay/wage (with or without a union) and for seeking to enforce their wage and hours rights.
An employer may not terminate their employee in response to protected whistleblowing activities. Under New York Labor Law Section 740, an employee is protected as a “whistleblower” if they have discovered covered corporate wrongdoings or violations of the law that cause significant and specific danger to public health and safety and then they report this or refuse to participate in said illegal activity. However, to be protected as a “whistleblower,” before reporting this conduct to a public agency, an employee must first give their employer a reasonable opportunity to correct their behavior or practice by first bringing their findings to a supervisor’s attention.
REQUEST FOR OR EXERCISE OF PROTECTED RIGHTS
An employer may not terminate an employee for requesting for or exercising certain protected rights, including in the following situations:
Family Medical Leave Act
If an employee’s request to take leave (for example: for maternity leave, to take care of a spouse/child with a serious health condition or sick leave) falls under the Family Medical Leave Act, they are entitled to job-protection and cannot be unlawfully terminated for exercising or requesting this right.
An employee is protected from their employer terminating them or filing an adverse action against them in retaliation for filing a worker’s compensation claim, for filing a disability benefits claim or for testifying before the Workers’ Compensation Board.
Refusal to Submit to Sexual Advances
An employee may not be terminated for: (1) refusing to submit to sexual advances; (2) reporting a sexual harassment incident internally or with any anti-discrimination agency; (3) testifying or assisting in a proceeding involving sexual harassment; (4) opposing sexual harassment verbally or through an informal complaint to management or a supervisor; (5) complaining that another employee has been sexually harassed; or (6) encouraging a fellow employee to report harassment.
CONTRACTUAL OBLIGATIONS AND PROTECTIONS
If an employee has entered into an employment agreement, there may restrictions on when an employee may be terminated. For instance, some employment agreements make clear that an employee can only be fired for “cause,” meaning there has been some form of improper conduct. If an employee is fired without cause and believes this was in violation of their written contract, they should have an experienced employment attorney review the agreement to advise on anything that may limit the employer’s right to fire the employee in the absence of cause.
For additional information related to wrongful termination of employment in New York, please contact an experienced employment law attorney.
For more information on our Wrongful Termination services, or to speak with an experienced NYC Wrongful Termination attorney Contact Us