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At-Will Employment in New York

Author Yuriy Moshes

What is At-Will Employment in New York?

New York is an at-will state, meaning that, but for one of the exceptions, all employees are considered “at-will” employees. This means that an employee can be fired without warning at any time for any reason or no reason at all. Unfortunately, the employer’s reason for terminating an at-will employee can seem unfair, unethical, or even immoral, but could still be deemed lawful.

Exceptions to General New York Employment At Will Rule

New york is an employment at-will state. However, when it comes to NYS labor laws and termination, there are exceptions to the general doctrine of at-will employment and terminated employees. There are laws prohibiting termination that are illegal under both federal and state law.

NYC Union Contracts

Under NYC union contracts, at-will employment may not apply. One of the great benefits of being a union member is that termination must be for certain reasons. Accordingly, the union contract may specify the reasons in which a termination of an employee may occur. This is often referred to as “for-cause.” The opposite, or for “non-cause” reasons, such as being laid off simply because the employer feels like laying off an employee may be insufficient as the basis for a termination. Accordingly, if a person is terminated by their employer and a union contract exists, whether they are a union member or not, that person should consult with a union representative first.

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    Oftentimes, even if there is cause, there may be a process involved before that person can finally be terminated. This may include a written notice or notice to employees and then an investigation before final termination may occur. So rather than just a straight termination, the employer may have to abide by a process in which the employee must go through a series of steps first before they are finally terminated. This is different from at-will employment, in which there is generally no process or steps taken. As such, it would behoove an employee to talk with an employment law attorney to first review any union contract, even if it is for informational purposes only, to determine if termination was proper.

    Employee Handbook/Manual

    If the employee has a NYC employee handbook, then at-will employment may not apply in an employment relationship. As with a union contract, an employee handbook/manual often outlines specific reasons and procedures before termination can take place. For instance, the handbook may detail that the employee be given a written warning first or be given some sort of investigation or procedure before they are actually deemed terminated. Moreover, in New York, employee handbooks/manuals have been known to be viewed by the New York Department of Labor as written contracts between the employee and employer.

    Accordingly, if the employer does not adhere to the steps or protocol outlined in the handbook or manual, the employer could be deemed as having breached its contract with the employee. If this occurs, the employee may have a claim or suit against their employer for breach of contract. Again, this is different from at-will employment, in which there is generally no process or steps taken. So, if the employee does have an employee handbook or manual and are terminated, they should consult with an employment law attorney immediately to review your individual circumstances of what happened and to review any handbook or manual to determine if the employer breached its contract with the employee.

    Political Participation

    Can an employer fire or discriminate against an employee based on political beliefs? If you thought that the first amendment provides protection, you’d be wrong. In fact, you may be surprised to learn that, for many employees, the answer is yes. Federal law does not protect private employees from discrimination based on their politics. However, New York labor law does prohibit an employer from terminating or discriminating against employees for participating in politics outside of the workplace.

    at will employment new york

    Furthermore, employees who work for the state or government, or state employees, are protected from discrimination or termination based on their political beliefs or actions. Accordingly, if the employee is terminated due to their political participation or affiliation, that may be illegal as termination based upon political participation may be an exception to at-will employment. In such circumstances, it is best to discuss your facts with an employment law attorney who can analyze your facts and make a determination if you have a strong claim.

    Whistleblower

    If the employee was terminated on the basis of retaliation due to the fact that they were a whistleblower, then at-will employment may not apply when it comes to personnel action. The whistleblower protection act protects employees from making a complaint, instituting a proceeding, or testifying at a proceeding concerning a violation of New York’s labor laws, including the state’s occupational safety and health laws. N.Y. Lab. Law § 215.

    According to the protection act of 1989, in order for this protection to apply, the violation committed by the employer must have actually occurred. The whistleblower protection does not apply to an employee who only mistakenly thought that the employer had committed a violation, even if the belief was reasonable and in good faith. Whistleblower application can be tricky, so it is important to consult with an experienced employment law attorney to discuss your rights and options when it comes to the identity of whistleblower and whistleblower retaliation.

    Jury Duty

    If the employee was terminated because they did not show up to work due to jury duty obligations, then at-will employment may not apply. New York encourages its citizens to perform their civic duty and attend jury duty if they are called upon. Accordingly, New York has laws in place protecting employees from being terminated or discriminated against if their employer retaliates against them for being absent due to having to be on jury duty. If this happens to you, you need to consult with an experienced employment law attorney right away.

    Worker’s Compensation

    In New York, when it comes to workers’ employers, it is illegal to terminate somebody based solely on their physical or mental disability. This is illegal employment discrimination. Accordingly, if an employee has a workers compensation claim, are receiving workers comp benefits, and they are terminated based upon that claim in retaliation for filing a workers compensation claim, being injured, or even talk with an attorney, all of these can be viewed as violating New York laws.

    This means that if an employee has a workers compensation claim and suddenly find themselves being terminated by their employer, they should contact an employment law attorney right away.

    Human Rights Law/Discrimination Law

    According to both federal and New York City human rights law, the law prohibits discrimination making it illegal to terminate or discriminate against an employee on the basis of certain “suspect” classes. These laws against discrimination in the workplace include discrimination and harassment on the basis of race, sex, gender, sexual orientation, ethnicity, national origin, religion, and disability.

    The most common of these classes are race and gender. In these types of circumstances, at-will employment does not apply, and in the above cases, the employee should talk with an employment law attorney that practices NYC human rights law right away to discuss their options. As with many cases, these types of cases are very fact-specific, and so a good employment law attorney will be able to analyze the facts and apply them to the law.

    What Constitutes a Wrongful Termination in New York?

    A wrongful or illegal termination occurs if the termination violates one of the laws that protect New York employees or breaches an existing employment agreement. Although New York is an at-will state, employees still have the right to be protected against the breach of any oral or written contractual agreement between the employer and employee, as well as protection against any illegal acts by the employer.

    termination employees

    For example, an otherwise legal termination would be unlawful if:

    1. the termination was not in accordance with the outlined procedures in the employment contract;
    2. the termination was based on a specific protected characteristic such as age, race, pregnancy, religion, sex, disability, national origin, marital status, sexual orientation, arrest or conviction history, and status as a victim of domestic violence;
    3. the termination was in retaliation for reporting acts of discrimination or wage violations;
    4. the termination was in retaliation for filing a worker’s compensation claim;
    5. the termination was in retaliation for reporting a violation of law which creates and presents a specific danger to public health or safety; or
    6. the termination was in retaliation for serving jury duty.

    Breach of an Employment Contract

    The above examples dealt with an “at-will” employment status. Some employees are hired under an employment contract that provides the terms and conditions of their employment. Sometimes, employees hired under a contract may not be considered “at-will” and might only be subject to termination according to the terms and conditions of the contract. For example, some employment agreements will state that the employee can only be fired “for cause” during the duration of his or her employment.

    Other employment agreements might mandate that the employee be given proper notice before termination. In such cases, firing the employee without warning or notice would be a breach of contract and would give the employee a legal claim. Where an employment contract contains a term of employment for an indefinite period of time, it is presumed to be an employment at-will that is freely terminable by either party at any time for any reason or even for no reason. We encourage you to contact an employment rights attorney if you feel that your termination might be illegal or in breach of your employment agreement.

    Remedies for a Wrongful Termination in New York

    In New York State, employees can recover statutory damages resulting from an unlawful discriminatory/retaliatory termination, or contractual remedies resulting from a breach of contract. Statutory remedies such as lost wages, punitive damages, liquidated damages, compensation for emotional distress, attorneys’ fees, and costs can be recovered under certain laws.

    For example, an employee fired due to a violation of the Family and Medical Leave Act (“FMLA”) is entitled to recover lost wages, liquidated damages (twice the amount of lost wages) as well as attorneys’ fees and costs. Likewise, the New York City Human Rights Law provides employees with the right to collect lost wages, compensation for emotional distress, attorneys’ fees, and costs, as well as unlimited punitive damages for any form of employment discrimination, including sexual harassment.

    An important thing to remember is that all employees have a duty to mitigate their damages even if the employees were wrongfully fired. This means that all employees have the responsibility to make good faith efforts to seek new employment and find another job. Employees should always document the steps they have taken during the job search so there is evidence that the employees satisfied their obligation to mitigate their damages. This is important because the employee may be entitled to the difference between his or her old salary and the new one.

    Should I Agree to At-Will Employment?

    As stated above, all employees in New York are automatically deemed to be employees at-will, unless otherwise agreed. Many employers nonetheless take steps to ensure that the at-will nature of the employment relationship is clearly established and agreed-to by all parties. This is typically spelled out in employment applications, contracts, and employee policy and procedure manuals. The policy may label it as “at-will employment” or may simply state that employees can be terminated at any time without cause or for any reason.

    Thus, just because you are presented with an employment agreement, this in no way means that you are not an at-will employee. Before signing the agreement, review it to determine whether it contains any exception to the at-will employment doctrine, and if not, make sure that you understand that you can be terminated at any time for any reason.

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      If your employer makes some verbal promise to you whereby the employer agrees to employ you for a certain amount of time or tells you that you can only be terminated for specific enumerated reasons, ask that it be reduced to writing. If you have any questions about your employment agreement or at-will employment in general, please call the experienced employment lawyers at The Law Office of Yuriy Moshes, P.C.

      How Do I Know if I Have a Claim for Wrongful Termination?

      While there is no such legal claim as “wrongful termination” in New York, there are actually many employment and labor laws that an employer can violate when terminating an at-will employee. For example, just because you are an “at-will” employee, this doesn’t give your employer the right to fire you for any reason – particularly if they run afoul of state or federal anti-discrimination or anti-retaliation laws.

      As discussed above, state and federal laws prohibit discrimination based on several categories, including but not limited to, race, religion, gender, age, national origin, disability, pregnancy status, sexual orientation, and gender identity. If your employer has terminated your employment due to a discriminatory reason, you can bring a legal claim against the employer.

      at will employment new york

      New York Employee Termination Checklist

      Most terminated employees leave in a hurry. If an employee is leaving, they need to make sure all of their ducks are in row first and review their employee termination checklist or New York employee termination checklist.

      • Discharge Notices. Check to see if you have any kind of written contract with your employer. If you do and it states that your employer has agreed to employ you through a certain date, make sure that you are not being terminated prior to that date. Accordingly, it is important to review any termination of employment letter or termination letter and the actual termination date to see if it in violation of any written agreement you already have with your employer.
      • Final Paycheck. Oftentimes, an employer will terminate their employee and refuse to pay them their regular pay for various reasons. This may be because the employee may have destroyed some equipment, or cause the employer, in their mind, to lose money, or it may just be because the employer thinks that the employee will be so intimidated or scared that they won’t confront the employer for their last paycheck. So, before you walk out, you need to talk with human resources or your boss and find out when to expect your final pay. If the employer refuses to do so, you should consult with an employment law attorney who is familiar with final paycheck laws and who is not afraid to get the employers to pay penalties for not paying.
      • Vacations. If you are terminated and you are owed vacation time or have vacation time left, you need to talk with your employer or human resources and ensure that whatever paid vacation leave you have left or that are owed, you are able to receive, particularly when it comes to private employers and the private industry. Just because you are terminated does not mean you have to give up whatever vacation time that you had accumulated.
      • Non-Compete and Non-Solicitation Agreements.  If you are terminated and you are asked to sign any non compete agreement or non solicitation agreement by your employer, have an attorney review such documents first. Although New York courts tend to disfavor non-compete provisions, non-compete and non-solicitation provisions have been enforced where there is valid confidential information and trade secret to be protected.
      1. Impose no greater restrictions than required to protect an employer’s legitimate protectable interests;
      2. Not impose undue hardship on the employee or be harmful to the general public; and
      3. Be reasonably limited temporally and geographically.

      Accordingly, if the employer offers you something in exchange for signing such an agreement and leaving the company, have an experienced employment law attorney first review those documents to see if that are even enforceable, and then if they are, whether signing such documents would be beneficial to you.

      • Layoffs and Reductions in Force (New York WARN Act). The New York State reduction in force laws or Worker Adjustment and Retraining (WARN) Act requires covered businesses to provide early warnings of closures and mass layoff to a group of employees, employee representatives, the Department of Labor, and local workforce development boards. This protects workers, their families and communities by requiring most employers with 100 or more employees to provide notification 60 calendar days in advance of plant closing and mass layoffs. Accordingly, if you are terminated and you think that the WARN Act may be applicable to you, consult with an employment law attorney first to determine if your employer had violated the WARN Act.
      • Check to see if your employment agreement states that you can only be fired “for cause” during the term of your employment;
      • Check all written correspondences with your employer for any kinds of similar agreements;
      • Document as much as you can and complain about it in writing; and
      • Contact an at-will employment lawyer to get a free consultation on your case.

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        FAQ

        What constitutes wrongful termination in New York?

        In general, wrongful termination is being fired on the basis of race, sex, gender, sexual orientation, ethnicity, religion, or disability.  However, if you have a contract between yourself and the employer and the employer may have breached that contract, then you may also have a breach of contract case.

        Is a termination letter required in NY?

        Yes, Under New York Labor Law § 195(6), employers are required to provide written notice to any employee terminated from employment with “the exact date of such termination as well as the exact date of the cancellation of employee benefits connected with such termination.” This written notice must be provided within five working days after the employment relationship has ended.

        How long does an employer have to pay you after termination in New York?

        New York law (New York Labor Laws, § 191) on final paychecks says that an employer must pay all unpaid wages no later than the regular payday for the period when the employee was fired.  If you quit your role with an employer, New York law says you should receive your final paycheck on or before the ordinary, scheduled payday for the pay period when you put in your resignation. An employee can choose to have the final paycheck paid by mail.

        Can you sue for wrongful termination in NY?

        Yes.  If you believe that you were terminated on the basis of race, sex, gender, sexual orientation, ethnicity, or disability, then you should consult with an employment law attorney immediately.

        Is New York an at-will state?

        Yes, New York is an at-will state.

        Should I sign an at-will employment agreement?

        Courts have generally held that an employee can be terminated, or not hired, for refusing or failing to sign an at-will employment agreement. While you are not technically required to sign the agreement, if you want to get hired or keep your job, it may be in your best interest to sign the agreement.

        I have an employment contract. Does that mean that I’m not an employee at-will?

        It depends. You would still be an at-will employee unless your agreement contains a provision guaranteeing you employment through a certain date or if the agreement states that you can only be fired “for cause.”

        What are cases when an at-will employee cannot be terminated?

        Pursuant to the New York State Human Rights Law and the New York City Human Rights Law, an employer may not terminate an at-will employee based on the employee’s membership in a protected class. Likewise, the New York Labor Law prohibits employers from terminating an employee for his or her off-duty political or legal recreational activities outside of work, legal use of consumable products outside of work or membership in a union (N.Y. Labor Law § 201-d). Employers may also not terminate or discriminate against an employee for making a complaint to the employer or the commissioner of labor regarding purported violations of the New York Labor Law, including a violation which “creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud” (N.Y. Labor Law §§ 215 and 740).

        Can you file a wrongful termination lawsuit in an at-will state?

        There is no such thing as a wrong termination cause of action in New York. Wrongful termination is not a legal claim. If you were fired for a discriminatory reason, you can sue for discrimination. If you were fired for a retaliatory reason, you have the right to bring an action for an unlawful retaliatory termination. Also, if you were fired in violation of the terms and conditions of your employment agreement, you can sue for breach of contract.

        Are there state-specific rules on when final paychecks are due after termination?

        Regardless of whether an employee voluntarily leaves his or her job or is terminated, the employer must pay the employee’s wages not later than the regular pay day for the pay period during which termination occurred

        Does an employer have to give written notice of termination?

        Yes, New York Labor Law § 195(6) requires employers to provide written notice to discharged employees, stating the effective date of termination. The notice must also provide the exact date that any employee benefits, such as health, accident, and life insurance, will cease. This notice must be given to the employee no later than five (5) working days after the date of termination.

        Can I collect unemployment if I was fired as an at-will employee?

        Yes, New York allows at-will employees terminated through no fault of their own to qualify for unemployment benefits.

        I have a new job offer. How do I know if I’ll be employed at-will?

        All employees in New York are automatically deemed to be employees at-will, unless otherwise agreed. Look through your handbook and all other documents that were provided to you and see if any of them mention that you are an at-will employee. Even if your employer does not use the term “at-will,” any language implying that your employment can be terminated at any time for any reason means that you are an at-will employee.

        Experienced Employment Lawyers in NYC

        Just because you are terminated by your employer does not mean that everything is said and done.  Although New York and NYC is employment at-will, an employee does have certain rights.  If the employee was terminated on the basis of race, sex, gender, sexual orientation, ethnicity, religion, or disability, then that employee may have a claim against their employer for wrongful termination.  Furthermore, if that employee was a union member or had an employee handbook / manual, that document could be legally interpreted as a written contract between the employee and employer, and the employer may then be in violation for breach of contract. 

        Law Office of Yuriy Moshes

        A qualified employment law attorney from the Law Office of Yuriy Moshes can provide you a free consultation about your rights and how strong a case you may have.  Their law offices help wrongfully terminated employees in the New York City area including all its boroughs (Manhattan, Brooklyn, Queens, the Bronx and Staten Island) as well as Northern New Jersey, Long Island, and Upstate New York.

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