New York Wrongful Termination Legal Questions

Depending on the particular facts, you may have a cause of action against your ex-employer for, among other claims, firing you in retaliation for you exercising your right to request FMLA leave.  Today, you should call an experienced New York City Wrongful Termination Lawyer about your matter.... Read More

It's worth a private consultation but any lawyer will need more specifics to be of any assistance.  I see at least 3 topics to discuss, specifically whether: (i) the employer has a basis to oppose unemployment for misconduct; (ii) the employer's on-site substance abuse testing was lawful; and (iii) there is any basis to infer your termination was discriminatory or retaliatory as opposed to a lawful exercise of at-will termination rights. ... Read More

COVID is a very serious virus and as a country we might have a false sense of normalcy when that is not reality. My dentist attended a wedding and came down with a bad sinus infection. When other wedding party family called her with similar illnesses they all got tested and most of them had COVID. All vaccinated and one became very ill. So this is not over. Schools are potential incubators for mass outbreaks. They are apparently sending you a message that ill employees should stay home and always get tested after any illness. I think any of us who become ill and want to return to indoor workplaces will get tested following illnesses for years to come. The new reality. You should discuss the matter with a union attorney. That's why they represent you in exchange for paying union dues. Private lawyers will likiely charge thousands to represent you at a hearing with NO guarantees. If your union believes this may be a terminable offense that might be the case with private counsel or a union attorney. Any lawyer who advises you should: 1) Carefully review your union contract and all policies, procedures, handbooks, and documents governing your employment. 2) Carefully review your entire personnel file which may be FOIL requested by you or anyone else. If you don't have a complete copy this may be the time to request it because any disciplinary decisions will be made on anything and likely everything in that file. You will definitely not want to ever return to work in the future after any illness without a test or doctor's visit showing that you are clear. 3) All COVID protocols and policies especially the Tuesday testing one to determine whether you complied with those. 4) Any other memos, postings, prophylactic policies, state or federal mandates, DOE requirements, etc... associated with COVID. 5) DOE licensure or certification requirements. Depending on your own credentials you may want to investigate whether you violated any laws protecting the vulnerable. Children and elders are specially covered by the Justice Center and other agencies so make sure, maybe through your union, that your licensure or certifications will not be affected and hire private counsel if there is any potential issue there.  ... Read More

Maybe. Did you request an accommodation because of your apparent disability? What did your doctor say? How long did you need to be absent from work? What date or approximate date did you inform your employer that you  would return? You will be collecting short term disability benefits correct? One year of service gives you protection to keep your job if you require up to 12 weeks of Family Medical Leave Act leave. Of course, your employer must employee at least 50 employees. But even if the above does not apply to you, you might be protected by the New York State Executive Law also called the New York State Human Rights Law. If an employer knows that you require an accommodation or should know that you need an accommodation (i.e which could include time off from work with an anticipated return date) which accommodation does not cause an undue hardship for your employer due to almost any medical condition which incapacitates you, it might have to provide such an accommodation to you. Your key issue may be whether you asked for an accommodation, when you planned on returning, and whether your employer engaged in an interactive process if it knew or should have known that you needed some type of accommodation. Best thing is to call some employment lawyers or view some videos on YouTube at Employment Law Reality Check which always suggest calling many employment lawyers. Legitimate,  nondiscriminatory reasons for terminating "at will" employees are OK. But your facts at least suggest that there may have been an improper motivation in terminating you. A skilled Employment Lawyer needs to ask you some tough questions. These are never slam dunk cases, even with strong facts. Speak with Employment Lawyers.... Read More

Technically wrongful termination is misleading.   Were you covered by an employment agreement, either private or collective, such as a union CBA, which was breached or broken?   If not, were you discriminated against? Not just treated badly but was the motivation to fire you discriminatory? For example, the employer used or considered your age, race, sex, national origin, disabilities or regarded you as disabled or discriminated against you because you associated with persons from protected classes? There are other protected classes but these are the majority of what many refer to as wrongful terminations. There are many wrongful terminations but few unlawful or discriminatory ones. Have your facts ready when you call many employment lawyers. If you hire one make sure you discuss what you want and what an employment lawyer reasonably thinks you might receive several months or several years down the road.... Read More

If you are fired for telling the truth do you really want to work there? If that happens and you told the truth as long as you did not commit gross misconduct doing your job you should receive unemployment benefits if you apply honestly for them after being fired.   The big question might be what your own motivation was for doing what you did? Most employees are honest and work that way. But if in your next job you are promised something and then your supervisor does not follow through the best thing is to get another job.   All employees owe a duty of loyalty to employers. You were not asked to lie. Your manager did so. If you were interviewed you would tell the truth. Your manager may not admit what the truth is but that is for your employer or the state to determine. Not really your job until you become a supervisor and decide what you must do to keep that job.... Read More

Before you touched the youth you did not know whether the youth would find your touching them offensive. Rephrased, the youth did not ask you to touch them around their neck area. None of us knows what another person may or may not find offensive. And offensiveness is not defined by what you or I may find offensive. Therefore, no employee should ever touch anyone else at work unless that employee is saving the other person's life with CPR or protecting them from some obvious, imminent danger. Otherwise, touching another for any reason is completely illegal in any workplace; especially in New York. Also, an employer can make a mistake when terminating an employee. The most frequent mistake I hear about is stealing. An employer reasonably believes that an employee stole goods, embezzled monies, took tips, removed monies from registers, etc... That list goes on. Then after termination, the employer realizes that it made a mistake. That's perfectly legal. The employee might still, in some circumstances recover unemployment benefits, but they very rarely are reinstated to their jobs. No employer is perfect. Employees need to make sure they do not place themselves in situations where employers need to make judgment calls which turn out to be wrong.... Read More

Sorry to hear that. Many terminations are wrong or not fair. What we need to uncover is whether an employment contract was broken or whether you were discriminated in the way you were terminated. Yes correct not easy. On youtube I have about 44 videos which talk about common questions which employees ask. Employment Law Reality Check is the name. Before COVID many of us might charge $500 to meet a potential client for a consult in our offices. Today many of us represent employees across the state who we may never personally meet. If you call some experienced employment lawyers we recognize strong facts when we hear them. Everyone needs a plausible theory to recover. That's more than a hunch or a guess. Call some employment lawyers and both you and those experienced lawyers will probably recognize a claim worth more than nuisance value. Good luck.... Read More

So she is now "stalking you"? Go to the police and file a report so that a judge can potentially enter an order of protection to have her stop. If your employer makes a mistake, believes you are a harasser and fires you, having your own honest facts police report, hopefully followed with an OOP, might help? Your issue is frankly more in line with a domestic relations or family law matter. Family law lawyers might help you the most? They can give you suggestions on these types of very messy issues. Employers today must investigate. If they treat everyone with similar allegations the same way how would you prove discrimination unless the police investigate and help you prove it's her and not you? This is a good example for why any personal or intimate relationship at work regardless of consent is very rarely a good idea.... Read More

Forward the email with your application for benefits. The 7day waiting period has been lifted. Unless you were protected by some contract or have evidence of discrimination you will need to seek a new job while on unemployment. Many of us will never retire nor do we have a desire to do so. Good luck.... Read More

Maybe. You need to stay in close contact with human resources. Respond to all their requests immediately. Complete necessary paperwork timely. And aske them for extra time if you need it. The type of work you do, the size of the employer, and the hardship your absence might cause all play a role. There are no guarantees. If they discover something you did on the job which has nothing to do with your absence then they can take action on that also. Call them regularly and work with them toward a return date. Especially if you are at will which most employees are.... Read More

This may not make you feel much better. But employers do not have to investigate theft. They do not have to be right. They can and often do tell employees lies. The reason most employers conduct investigations is to have some evidence that they did not discriminate. When employees file discrimination charges that often does cost employers lots of money win or lose. Then defense lawyers earn their money because they end up doing the investigation that was never done. You gave no facts of discrimination nor hostile work environment nor anything else that may have been illegal. If you have such evidence you can file with the EEOC for up to 300 days or with New York State's Division of Human Rights. They both do good work. But unless an employment lawyer helps you it may not result in a financial recovery for you. And most of us stay busy and we have to select the best claims because we too have to earn a living. Good luck and thanks for asking. Fairness is generally not written. We just do our best to make it happen if the facts are strong and the law is on our side.... Read More

Your union should treat you like any other union member. If they recommend you agree to the last chance agreement then they should assure you that every union member who is insubordinate is recommended the same option.   You can retain private counsel at your expense. More employees do this because if you go to arbitration and lose the chances of a successful appeal are not great.   Everyone today has a target on their backs. Duty of Loyalty, Faithless Servant, and Master Servant Doctrines are all good common law in New Yotk whether someone wants to admit that or not. And although your child is rightfully important for you there is no duty to accommodate your child, just you. You can request FMLA but once that is gone there is no possible extension of that like there might be if it was your own disability.   In your particular case you should pay a decent amount of money ( sometimes you get what you pay for) to an attorney who limits their practice to labor and employment law to spend a few hours with you and truly and honestly tell you the reality and choices you are facing. 25 years or 5 years on the job the union should treat everyone the same. Lots of employees would probably jump hoops to get a union job today and then never raise their voice no matter how much a supervisor yells. Your supervisor might have no union protection. Which means if you don't do exactly as instructed the supervisor loses their job with no warning and no questions asked.   It's brutal out there when you have absolutely no union and get absolutely no second chance as it looks like you might be getting. Another option is to pay a private labor and employment lawyer to review that last chance agreement and confirm what you might already know. Is there hidden discrimination not related to your child going on? Sometimes employees are sure of discrimination and after a few hours a skilled lawyer sees a completely different and unrelated discrimination which the employee never would have discovered. Not always, but paying for a consult does sometimes bring up hidden prejudices which are illegal and the claim the employee wanted to pursue is not the one which can potentially be proven. Almost never are discrimination claims easily proven no matter what they are.... Read More

If you belong to a union you have the right for a union representative to accompany you to an interrogation.   Otherwise most employment law matters are not criminal. Were you potentially facing criminal charges you could insist on a criminal defense lawyer.   In other and most employment situations it is at the discretion of the employer. The master servant doctrine lives. They have a duty to pay you. You have a duty to be faithful. And either side can end the relationship without cause unless you are government employed or you are covered by a contract which says the opposite. That's why it's called at will employment.... Read More

Call employment lawyers before you sign. We review severance agreements for flat fees statewide. You speak with an employment lawyer first. If you feel comfortable the lawyer gives you a flat fee that you pay by credit card on line. Then an employment lawyer thoroughly reviews the agreement (usually within a day and calls you back). Then you have a conference again where you decide is this reasonable, should you ask for more, can you do anything else BEFORE you sign. Good luck and ask for an employment lawyer's help.... Read More

It looks like meeting quota was required for this job. No supervisor needs to like her or his subordinates. But all employees must perform the essential functions of their jobs with or without accommodations. There is no mention of needing accommodations or discrimination. What is the wrongful part if you were "at will" as most employees are?... Read More

Great question!   Most employees are "at will". You can quit. The employer can fire you. No reason necessary unless your union contract, the civil service laws, or a private employment contract you negotiated with your employer states otherwise. Assuming these don't apply, no reason is a good reason.   If you are still doubting this go on YouTube and type in "employment law reality check". I think I have posted a dozen or more very short video clips which will help you. All of the common law doctrines such as Master Servant, Faithless Servant or Duty of Loyalty apply in New York. What that means is that you have to please your employer and co-workers. If the employer gets more than one complaint about you from a couple different co-workers you are probably not going to last much longer. Remember that you have to be civil to your manager and fellow employees. Your manager does not to any employee: unless they are discriminating. And you need a plausible theory to prove that.   Make sure you honestly get your unemployment benefits. It's tough not to receive them in New York. If you are denied unemployment it means you need to reflect on whether working for others is your best fit. You might decide to open your own business? Which many many people are doing every day because many manual labor jobs are disappearing quickly.... Read More

What are your damages? Assuming you still work there how much money have you actually lost? If you were fired for gross misconduct you would not recover unemployment benefits. If you do not recover unemployment benefits how would you prove and potentially recover damages for potential discrimination because of sex, for example? Isolated incidents of name calling will not rise to the level of a hostile workplace. You need to show that the hostility was severe or pervasive and that it was either because of sex or some other protected class of employee which was being targeted. And finally, you have to mitigate your damages. That means look for another job. So if you were fired and then got a higher paying job, again, what would your damages be? You might want to watch just a few short clips of "Employment Law Reality Check" on my website at www.UrbaNYlaw.com. Each one is less than a minute long and listening to them might help you understand how difficult proving an employment discrimination claim is. Good luck. Every employee owes their employer a duty of loyalty so if you challenge a supervisor that could be insubordination. Insubordination could rise to the level of gross misconduct. Gross misconduct would probably disqualify you from receiving unemployment. Being denied unemployment would probably wipe out discrimination claims such as "because of sex" (calling someone a pussy repeatedly over a period of time, if proven, might do it). And you would have to prove the because of sex was severe or pervasive and that you suffered economic loss due to being fired for complaining about such conduct. Sounds like you have lots of work ahead of you and make sure to lawyer up if you pursue such a claim. ... Read More

Probably. Being late may be one of the easiest ways to get fired for cause. It also might rise to the level of gross misconduct which could result in being denied unemployment by the DOL. The easiest way to be denied or penalized for unemployment is to make any false verbal or written statement to the DOL. At will employees can be fired for absolutely no reason ar all. That's correct. Read again. No reason necessary. As for off the clock conduct, an example might help. Employee X is drinking off the clock at a bar with coworkers Y and Z. X employee says to Y  "if you ever go to HR to complain again I will hurt you" and all 3 employees including Z know that X was just joking. X gets fired AND is denied unemployment benefits in New York State which is pretty hard not to be approved. Threats of bodily harm are taken very seriously in our state. Maybe the insult was not as bad as a threat or joke of bodily harm but only your extremely honest testimony at an unemployment hearing will determine that. Good luck.  ... Read More

New York is an employment at will state. Most states are. With no union no government no employment contract you were probably at will. You could quit or they could fire you for no reason. The most common thing I hear every day is " I got a new boss and they fired me." That is not illegal unless they were motivated by your race to fire you. How would you prove that? Anecdotally. The boss made racial slurs, fired or demoted everyone of my race, or had a bias against minorities in general are some ways. Judges tell me "you know Mr. Urba that the employer did not have to be nice to your client." That is true. The supreme court agrees. If an employer has a legitimate nondiscriminatory reason to fire someone that is not illegal. Communication skills could be such a reason but they really need no reason. Any plaintiff which might be you has to prove discrimination. We talk to 10 or 15 potential employees before we accept 1 as a client. That's because of how challenging it is to prove employment discrimination. Good luck. You need detailed specific facts and evidence and usually some evidence that you told HR or management about the discrimination before you got fired unless you can prove they already knew.... Read More

Is your employer agreeing to pay you severance or agreed to pay you severance? Do you still have time for some expert with employment contracts or severance agreements to review the one they will probably want you to sign? Or have you already signed a severance pay agreement more than 7 days ago; often meaning that you waived your right to potential, additional compensation? Were you a faithless servant? The Faithless Servant Doctrine is a common law doctrine. It applies in New York. It means that you have a duty to devote the time you are being paid for to the employer who is paying you. That applies to computers and other equipment or supplies provided to you by your employer. Did you use your employer's company time or their equipment to "job search." If so, how would your getting a new job have benefited your former employer? Why would this employer not have had the right to ask any of their employees about activities which the employer thought an employee had performed during company time or using company resources? Would it be wrongful for an employee to be untruthful or to refuse to cooperate, if those were the facts? "Wrongfully terminated" how? Labor and employment laws are not a civility code. Employers do not have to be nice to anyone. They can ask employees about activities performed during work hours or on the job. Were they asking you about job search activities you performed on your own time or on your own equipment? Your facts included nothing related to discrimination which might be wrongful. Were you a member of a protected class? Did the employer target you because of such membership? When and how? Your facts included nothing about employment contracts. Did you have one which was breached by this employer? For example, were you covered by employment contracts? They include collective bargaining agreements. Others are private employment contracts which might assure your employment from X date to Y date for this employer at an agreed compensation. Was this employer guilty of breaching such employment agreements? Doing so could be wrongful.  If you belonged to no union, did not work for the government, were not covered by any written employment contracts, nor are able to confirm facts to support discrimination how would you prove wrongful termination? Assuming you have not already waived your rights review all of the above documents, factual evidence and anything else and proceed timely if necessary. There are very specific time deadlines to pursue discrimination claims. Those deadlines are usually determined by a union agreement or contract or by federal or state laws. The laws usually require action by you within 300 days, 1 year, or in some limited cases 3 years, but don't count on the latter.  ... Read More

Do you fall under the labor and employment, computer employees exemptions pursuant to the Fair Labor Standards Act (FLSA) or New York's Wage and Hour Law? The following NYS Department of Labor link might help: https://labor.ny.gov/legal/counsel/pdf/Other/RO-09-0054%20Computer%20Employee%20Exemption.pdf You are correct. Control is important. But there are exemptions, under federal and state wage and hour laws, regardless of control. One exemption applies to computer employees. Were you one? You stated some skills which sound like ones applied by computer employees. Developing custom order forms, working with pdf style documents, posting such forms on the web for potential interactivity? Labor and employment experts should carefully evaluate the skills you applied and the duties you performed. Neither employers nor employees determine 1099 status nor W-2, Wage Theft Prevention Act (WTPA) compliance in New York. Those determinations are made by the Department of Labor (DOL). 1099 versus employee status is not governed by private contract. Even private employment contracts, drafted by lawyers, calling some workers independent are wrong. But if those "independent contractors" are exempt, regardless, under federal or state wage and hour laws, would such errors be material or relevant? If the above has confused you then you are not alone. Call the state or federal DOL for clarification. Regarding wrongful termination, did you have a contract which was broken or were you subject to discrimination? Assuming you were non-union, non-government employed, not subject to a term certain written employment agreement, how were you discriminated? And how might the IRS, dealing with income tax, help you?... Read More