If your New York business is about to start hiring employees, then it is essential that you know what hiring someone as an employee “at will” is and what rights and protections they are afforded under New York law.
New York is generally considered an “employment at will” state. This means that a private sector employer can hire and fire an employee at will as he or she pleases. The discharged employee will usually have little to no legal recourse, even when the firing is based on incorrect information or is unreasonable.
Of course, there are exceptions to this general rule:
- Union Contract: If the employee is a union member and employed under a union contract, then s/he is entitled to the protections written into that contract. Even if s/he is not a union member, the employee might be protected by a written agreement.
- Employee Handbook: If an employer distributes an employee manual or handbook containing rules and conditions under which an employee at will may be discharged or steps created that may precede discharge, then the employee may be afforded those rights outlined. An experienced employment attorney can advise you on any specific situation.
- Politics: If the employee was discharged because of his / her participation in a lawful political or recreational activity, the employee may have a claim for wrongful termination.
- Whistleblower: If an employee is fired for reporting a violation of law which creates and presents a specific danger to public health or safety, or is fired for refusing to participate in such an activity, then the employer may be exposed to a claim for back pay, reinstatement and attorney’s fees by the whistle-blowing employee.
- Jury Duty: Since attendance at jury duty is a civic obligation of all citizens, an employer who is notified in advance of a employee’s jury summons cannot fire that employee at will for that absence.
- Worker’s Compensation: An employer cannot fire an employee at will because s/he filed a Worker’s Compensation or claim for disability benefits. This is considered to be a retaliatory discharge of employment and is actionable.
- Human Rights Law: New York Law prohibits employers from firing an employee at will because of his or her race, religion, gender, place of national origin, age, marital status or disability. In New York City, employers cannot fire an employee based on sexual orientation, arrest or conviction, partnership status, and status as a victim of certain crimes. These grounds are probably the most commonly claimed violations in most New York employment lawsuits.
*Gene Berardelli may be contacted at: GeneBerardelli@ipglegal.com
Gene is a New York street-smart attorney with an extreme passion for success. Gene specializes in litigation, arbitration and general corporate law for New York-based and international clients. He, also, is the host of a popular New York talk radio program.
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