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What is 'At Will' Employment? - December 2019

New York is an “at will” employment state. This means that, with a few exceptions, all employees work at the will of their employer. Therefore, a business can choose to fire or terminate an employee at any time for any reason or even for no reason, even if this termination seems unfair to the employee. The employer does not have to show “just cause” for the termination.

Most employers, especially larger businesses, will have an employee handbook that provides guidelines for managers on when they can fire employees, under what circumstances, and/or how much correctional options may be offered first, if at all. But, should the business simply choose to downsize, change personnel or “teams”, or simply reduce its workforce, it can lay off employees in order to accomplish those business goals without giving any notice to its employees.

However, there are a handful of reasons where it is illegal to terminate an employee in New York...

Unlawful Termination

Federal and state laws do provide some exceptions to an employer’s ability to terminate an at-will employee. The biggest limitation is that an employee can not lose his or her job for discriminatory or retaliatory reasons. A business cannot fire an employee due to the employee’s race, religion, gender, age, nationality, pregnancy, disability, or sexual orientation. Employees also cannot be fired when they have to take time off for jury duty, voting, military service, or a certain amount of family and medical leave. Further, a business cannot fire an employee in retaliation for the employee filing a report or complaint of discrimination with a government agency or cooperating with an investigation into such a complaint, either by the employee or a co-worker.

Employment Contracts

In many cases, businesses enter into employment contracts with their employees. These documents become the governing rules, within the bounds of federal and state laws, for the relationship between employee and employer. A well-drafted employment agreement will provide a roadmap not only for employment, but also for the possibility of termination of employment.

The contract should specify details like the scope of employment, compensation, ownership of material created by the employee, and other details important to the day-to- day operations of a particular business. The contract should also contemplate what happens if the employee is terminated either for cause or not for cause.

A well-drafted agreement should also lay out clearly the different reasons that an employee can be terminated for cause. and should also state what happens when a business simply wants to terminate an employee through no fault of the individual – a not-for-cause termination. In these cases, there is often a warning or notice period, usually 30 days, before the employee would have to stop working.

Employee Handbooks

For further details governing the employer-employee relationship, businesses should provide an employee handbook. This document is generally updated on a regular basis and includes expectations such as dress code, attendance, and other policies. It will also outline the types of corrective actions managers can and should take short of firing employees. Your employee handbook should also include a non-discrimination policy and steps you can take if you feel that your employer, managers, and/or co-workers are discriminating against you or harassing you.

While working in an “at will” employment state generally means that you can be fired for no reason at all, businesses rarely fire people randomly. Usually, either there is a problem with an employee’s behavior or performance, or there’s been a change in business direction that has resulted in a change in its labor needs. Finding and training employees is an expense and investment, so making employment changes is not something a business does lightly.

However, there are many situations where a business, or a manager within the business, wrongfully terminates an employee. This usually occurs in retaliation for the employee having made a complaint of discrimination, or where there is a change in the employee’s condition (such as pregnancy or family illness). In this scenario, the the employer would rather not have to “deal with” or accommodate the employee’s changed circumstances and finds it “easier” to simply terminate the employee. In these situations, you may have a case for wrongful termination, even when you are an “at will” employee. One advantage of hiring Phillips & Associates is that we are a big firm that defends employees, so you won’t be out gunned by the big firm your old employer hires to defend themselves. For a free consultation, call the experienced New York discrimination and wrongful termination attorneys at Phillips & Associates today at (833) 529-3476.

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