When Are You Wrongfully Terminated From Your Employment?


Nicholas Pelosino, Esq

Nicholas Pelosino, Esq

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. The at-will rule is viewed as an equitable approach to employment termination decisions not only because it grants the employer the right to terminate, at any time, for any reason, but also because it provides the employee with that same right; accordingly, an at-will employee has the liberty to quit, at any time, for any reason. As with any rule, there are exceptions.  Even though you may be an employee at will, you cannot be fired for reasons that may violate your constitutional or statutory rights. For example, if your 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.

This article covers some of the common legal grounds you might have for suing your 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.


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 minimum is 4 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 4 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 personnel department that you believe you were discriminated against because of your race, 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 anti-discrimination laws.


Breach of Contract

In addition to discriminatory firings, you may also have a legal claim for wrongful termination if you have a written employment contract promising you job security. If you have an employment contract or are a member of a union you are NOT an at-will employee. Typically, the terms and provisions of your employment contract, as with any contract, will control whether your termination is justified or illegal.

New York also recognizes employment contracts based on oral promises supported by documentation or statements in an employee handbook or manuals, which an employee reasonably relied upon. For example, if your employee handbook says that you will not be fired unless certain disciplinary steps are taken, your employer may have to follow the promised steps before firing you. Under certain circumstances, some employee manuals have been found to create an implied contract of employment entitling an employee to all the protections against discharge that are written into the manual. Check your employee manual and consult your attorney if you have been discharged in violation of its’ terms. Discharge in violation of either a written or implied contract of employment might entitle an employee to sue his employer for reinstatement and lost wages.

Finally, you cannot be terminated if you are what is called a “whistleblower”. An employee who is fired for reporting to a supervisor or to a public agency a violation of law which creates and presents a substantial and specific danger to public health and safety, or who is fired for refusing to participate in such conduct is a “whistleblower”. If you are terminated for being a “whistleblower”, you can sue your employer for reinstatement, back pay and attorney’s fees.

Written by local Niagara Falls attorney, Nicholas A. Pelosino, Jr., Esq.

Serving our community for over 26 years


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