Lawyers in NY Help At Will Employees Understand Workplace Rights
Our New York Employment Law Attorneys Care About Your Workplace Rights
Attorneys at Leeds Brown Law, P.C., representing employees in the New York metropolitan area, understand the importance of your job. We know that you and your family depend on your paycheck and that you go to great lengths to work hard and get along with others so you stay employed. Sometimes, workers go so far as to tolerate conduct and behavior that is inappropriate or illegal. When this occurs, employees often find themselves afraid to report misconduct out of concern over repercussions that could negatively affect their employment.
Although New York is an “at will” state, you still have employment rights. For example, you have the right to receive wages, the right to equal treatment and the right to work in a place free from harassment. At Leeds Brown, we represent employees in workplace disputes involving discrimination, harassment, unpaid wages, unpaid overtime, wrongful termination, and whistleblowing. Our employment lawyers review and negotiate severance agreements, handle breach of employment contracts and more. Whether you need an aggressive litigator, skilled negotiator or compassionate counselor, Leeds Brown can provide skilled representation to help you reach the solution you desire.
Our firm takes a hands-on, team-based approach to employment matters which results in personal and professional service for our clients. With Leeds Brown, you are more than just a file number. You are a respected client to whom we make ourselves available 24/7. If you have an employment rights issue and want advice from relentless advocates, contact Leeds Brown and find out how we can help recover monetary damages from your employer.
At-Will Employees Have Rights
At-will means as one wishes, at one’s discretion, or by one’s choice. In the context of employment, it seems easy enough. It means that an employee or employer has the discretion or choice to continue the working relationship or terminate it. In other words, as the doctrine applies to a worker, you can quit at any time, for any reason. As to an employer, you may terminate the employee at any time, for any reason.
Is this actually true? What at-will truly means is that, absent a contract stating otherwise, an employer may dismiss an employee without establishing “just cause” (for any reason) and without providing a warning (at any time).
For example, your boss can come up to you tomorrow and say, “I don’t like the fact that your favorite band is the Beatles. I’m firing you” or “I heard you don’t like peas so you can’t work here anymore.” If you have an employment conract that requires “just cause,” to fire you, these reasons would probably not cut it. Just cause is usually something like insubordination, misconduct or incompetence. When your employer fires you for no reason or a reason you think is wrong or unfair, like in the examples above, under the at-will doctrine, there is likely nothing you can do. Things are sometimes not fair and receiving unfair treatment is not, in and of itself, the basis for a cause of action.
Employers May Not Fire Employees if Doing so Violates a Law
Employers may fire at will employees at any time, for any reason, EXCEPT if doing so violates a law. In other words, consider “any reason” to mean “any legal reason.” It is not legal to fire any employee for a discriminatory reason.
Federal and state laws prohibit employers from discriminating against employees. When an employer terminates someone’s employment for a discriminatory reason, the termination may be unlawful. Laws also prohibit employers from retaliating against employees for trying to exercise their rights under some of the laws. When an employer terminates a worker for trying to stop discrimination or enforce a wage rule, for example, it can violate the law.
Firing an employee for a discriminatory reason or in retaliation for exercising rights may violate:
- Title VII of the Civil Rights Act of 1963 (Title VII)
- The Age Discrimination in Employment Act (ADEA)
- The Americans with Disabilities Act (ADA)
- New York Human Rights Law (NYHRL)
- Pregnancy Discrimination Act (PDA)
- The Fair Labor Standards Act (FLSA)
- New York Labor Law
- The Equal Pay Act (EPA)
- Whistleblower Protection Act
- False Claims Act
Employers may Not Fire Employees for Discriminatory Reasons
Just because you work at will does not leave you without any rights. There is an important distinction to make between being fired for any reason or no reason and being fired for a discriminatory reason.
Employers in New York cannot terminate anyone’s employment or discriminate against any employee because of a protected characteristics such as age, sex or gender, race, national origin, disability or perceived disability, pregnancy status, marital status, sexual identity or sexual orientation.
When an employer fires an employee for a discriminatory reason, the worker may have the right to pursue damages by filing an administrative charge or a civil lawsuit. A successful plaintiff may be able to receive back pay, reinstatement and other remedies.
Some examples of situations that may violate discrimination laws include:
- If your boss fires you because you are Buddhist, it would be unlawful because it violates Title VII’s prohibitions against religious discrimination. Religion is one “reason” to fire an at-will employee that is not ok under law.
- Your supervisor fires you for refusing to submit to his sexual propositions. Withholding sex is not an acceptable reason to fire an at-will employee.
- You are a newly married man working at a large company. Although you finish your job, your boss fires you because it annoys him that you want to leave work exactly on time to have dinner with your new wife. This termination may be unlawful discrimination based on marital status.
- You are in a wheelchair and ask your employer to raise your desk as an accommodation under the Americans with Disabilities Act (ADA). Instead of making this reasonable accommodation, they fire you. This termination likely violates the ADA and is unlawful.
Employers may not Retaliate Against Workers
Retaliation in the workplace occurs in many different ways. It is any adverse action an employer takes against an employee because the employee tried to exercise his or her legal rights. Retaliation can include a demotion, pay cut, transfer or termination of the employment relationship. When an employer fires a worker for exercising rights, the employee may have a cause of action for retaliation and/or wrongful termination.
Some unlawful retaliatory situations may include:
Your co-workers are sexually harassing you. You have asked the human resources department (HR) to intervene and put a stop to the behavior. When your supervisor learns that you went to HR to complain, she fires you immediately. Your supervisor appears to have fired you in retaliation for reporting the harassment, which is illegal under Title VII. Title VII enequivocally prohibits employers from retaliating against employees for complaining about discrimination, participating in an investigation about discrimination, filing an administrative charge with a federal or state agency or otherwise trying to stop it.
When you ask for a reasonable accommodation for your disability, your employer fires you. Under the ADA, requesting an accommodation is a protected activity. Firing you for exercising your legal right to make such a request violates the law.
You realize that your employer is not paying you the minimum wage to which the FLSA entitles you, and hasn’t been for almost a year. You ask the payroll person to fix it, but she says the boss won’t let her. You file an unpaid wage claim to get your money. When your boss receives notice of the allegation, he fires you. Trying to collect your unpaid wages is your legal right, and the action of the employer likely violates the law. The FLSA states that it shall be unlawful for anyone to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act.” https://www.dol.gov/whd/regs/compliance/whdfs77a.htm
You are a female employee of a primarily male company. You suspect that you are not being paid equally and begin asking co-workers about their, salaries to make some comparisons. When your supervisor finds out, he fires you right away. This action may violate the retaliation provisions of the EPA, under which employees have the right to seek information to help prove a discriminatory pay practice. https://www.eeoc.gov/laws/types/retaliation.cfm
You work for a medical practice as an account manager and discover the doctors are billing Medicare for procedures they do not perform. You file a qui tam action against the practice. When the doctors find out, they fire you. The FCA protects employees from retaliation for acting lawfully in furtherance of an FCA action. http://www.workplacefairness.org/false-claims-act-qui-tam#21
Retaliation can also be known as wrongful discharge and it often, but not always, goes hand in hand with discrimination and unpaid wage claims. The discrimination and retaliation laws apply to ALL employees who work for employers covered by the laws. Whether you are at-will or have an employment contract, your employer may not fire you for reasons that are discriminatory or retaliatory.
More About Whistleblower Protection
Federal and state laws protect whistleblowers because the government wants people to come forward when they find evidence of fraud in the workplace. Encouraging disclosure is essentially the same reason that discrimination and wage laws have anti-retaliation language. The creators of these laws want individuals to feel free to speak up without fear of punishment. In the event there is retaliation or wrongful termination, the individuals have legal rights to seek the recovery of monetary damages and, in some cases, reinstatement.
Employment Contracts Give Workers Rights
If you have an explicit employment contract that grants you some job security, it is probably long and complicated. Someone with an employment contract is not an at-will employee. The contract binds you and your employer to its terms, and when a party violates one of them, the other may have a cause of action for breach of contract. Under most contracts, an employer is required to provide notice of termination and agreed upon severance to an employee. There may also be a provision allows an employer to terminate an employee for just cause. Usually, a just cause provision allows the employer to fire with no notice and with a reduction or elimination of severance.
For example, the terms of your five-year contract state:
“Should the employer terminate your employment before the expiration of the contract, you will receive 30 days notice and $10,000 for every year of employment with the business. If the employer has just cause to terminate your employment, the employer shall not be required to provide notice or severance. “Just cause” shall be defined as insubordination, incompetence, misappropriation of funds, and severe misconduct.”
If your employer fires you after three years of excellent service because it overestimated the need for your services, it would likely have to provide notice and pay you $30,000. If you don’t receive that money, you might be able to collect it by filing a breach of contract action. Given the definition in your contract, it would be hard for your employer to prove that your termination was for cause. If the employer fires you after three years because you have proven yourself incompetent at your job, it may very well be “just cause” under the terms above.
There are times when an employee without a written contract tries to prove that there is an implied or oral contract that imparts rights and obligations to the employer. For example, if the business has an employee handbook that says employees won’t lose their job without taking concrete steps, your employer may be, under certain circumstances, obligated to follow those steps before firing someone. If it fires you without doing so, you may have a breach of contract action.
Consider the following: On your first day of a new job, the employer has you read and sign the employee handbook. In the manual, it states that the following steps will be taken before terminating an employee who is not performing up to standards:
- The employee will receive a written explanation of the problem.
- The statement shall include the date and time of a meeting to be held between the employee and his or her supervisor. During that meeting, the supervisor shall provide the employee with a 60-day plan to remedy the situation.
- Upon completion of 60 days, the parties, including the employee, will meet again to review the employee’s progress and determine whether the employee will remain with the business or receive notice of termination.
- If the employer decides to terminate the relationship, the employee must receive at least 14 days of notice.
If your employer does not follow these provisions, you may be able to claim that there is a breach of contract. For example,
- You mess up a project and your boss, in a state of fury, fires you on the spot.
- You receive notice of a problem and a plan for remediation, but your employer fires you before the 60 days are up.
In either of these situations, you may be able to prove that the handbook constitutes a valid contract between the employer and employee that obligated the company to follow the steps set forth.
In New York, Employers Can’t Fire Workers for Taking Protected Time Off
Federal and state laws also provide employees with the right to take time off from work for various reasons without worrying about punishment, discipline or termination. In New York, the rights include:
Jury Duty –
According to the website of the New York Attorney General “An employee who gives notice to his employer that he has been summoned for jury service may not be discharged or otherwise penalized by the employer on account of such service. An employer of ten or fewer employees may withhold the full wages of an employee absent from work on account of jury service. An employer of ten or more employees must pay to an employee serving on jury duty the first $40.00 of that employee’s daily wage for the first three days of jury service.” In neither instance may an employer terminate employment.
The federal “Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) seeks to ensure that those who serve their country can retain their civilian employment and benefits, and can seek employment free from discrimination because of their service. USERRA provides protections to members of the Uniformed Services who must leave their civilian employment for a period of time due to activation of military service.” USERRA applies to members of the Army, Navy, Marine Corps, Air Force, Coast Guard, Reserves, Army or Air National Guard, and Commissioned Corps of the Public Health Service. This law gives employees in the uniformed services the right to take up to five years of leave to serve in the military. It also gives them the right to reinstatement when they return. USERRA also prohibits discrimination based on military service and protects employees from discharge for up to one year after returning from duty.
New York law also protects service members who must take time off for military duty. Employees in NY who are members of the U.S. Armed Forces or organized militia may take unpaid leave for active service, reserve drills or annual training, service school, or initial full-time or active duty training.
Upon finishing military service or training, an employee must be reinstated to his or her former position or one with the same seniority, status, and pay. “Employees must apply for reinstatement within 90 days of discharge from active service; within ten days of completing service school, reserve duties, or annual training; or within 60 days of completing initial full-time or active duty training. Once reinstated, an employee may not be discharged within one year without cause.”
Like USERRA, New York law also prohibits discrimination against employees who serve in the state or federal military.
Did you know that your employer may not fire or discipline you for exercising your right to cast a vote in an election? The rule in NY is that you are allowed to take up to two hours of paid time to vote if you need to. If the polls are open for four consecutive hours during non-work hours (before or after), your employer does not have to let you go during work.
Military Spouse Leave-
New York has a law that requires employers with 20 or more employees to allow the husband or wife of a member of the US armed forces to take up to 10 days of unpaid time off when the service member is on leave from an active military deployment. An employer may not discriminate against an employee who exercises his or her right to take this leave.
Family Medical Leave Act (FMLA)-
The FMLA requires businesses with 50 or more employees to provide eligible employees with up to 12 weeks of unpaid time off every year:
- to address a serious health condition
- to care for a family member with a serious health condition
- to care for a new child (Under New York law, employers must make the same leave available to parents adopting a child as they do to biological parents.)
- to handle certain matters arising out of a family member’s military service.
The FMLA allows an employee who cares for a family member with a serious injury incurred during military service, to take off up to 26 weeks per year. Employees who take FMLA leave must receive reinstatement to the same position once their leave is over.
New York also requires employers with 20 or more employees to provide time off for donating blood and bone marrow. Employers with 4 or more employees must provide time to victims of domestic violence.
If companies do not comply with these rules and fire an employee for exercising these rights, they may find themselves Defendants in wrongful termination lawsuits.
New York also protects employees in this state by imposing the following rules on employers:
- Whistleblowing – Employers may not fire an employee for reporting or threatening to report, illegal workplace activity; participating in a government investigation or refusing to take part in illegal activity.
- Off-duty conduct – Employers may not fire employees who use lawful products, or engage in a legal activity, while they are off-duty and away from the place of business.
- Workers’ Compensation – Employers may not fire or otherwise retaliate against employees because they file workers’ compensation claims.
- Workplace safety – Employers may not discriminate against employees who complain about workplace safety violations, testify in related legal proceedings or exercise their rights under workplace safety laws.
Employees Have the Right to Receive Minimum Wages
In addition to having rights to equal treatment, equal pay and be protected from unlawful termination, employees have rights to earn money for their work. Most employees have the right to receive minimum wages for the time they work. The FLSA is a federal law that states that employees shall receive at least minimum wage, which is $7.25 per hour. No state in the country can have a minimum wage lower than $7.25. Many states, including New York, have a higher minimum wage, and the higher one prevails. In New York, the minimum wage varies depending on the location of your job and, at times, the size of your employer and the type of work you do.
In New York State, the general minimum wage in 2017 is between $9.70 per hour to $11.00 per hour. For fast food workers, it is $10.75 everywhere in New York except New York City where the minimum hourly wage for a fast food employee is $12.00.
Of course, as with most laws, there are exceptions to the rule that everyone gets minimum wage. There are a handful of employees like camp counselors or farm workers that may be exempt from minimum wage requirements.
Employees Have the Right to Receive Overtime Pay
The FLSA and state laws also give employees the right to receive overtime pay. Overtime is every hour over 40 that an employee works in a given workweek. The overtime rate is one and half times your regular rate of pay. If your regular rate is $12.00 per hour, your overtime rate is $18.00 per hour. If you work 42 hours in a week, you’ll earn $12.00 per hour for 40 hours and $18.00 per hour for 2.
A workweek does not need to be Monday-Friday. The definition of a workweek is any seven consecutive days or 168 hour period. A workweek for you may be different than one for someone else.
As with minimum wage, overtime is not an absolute right. Certain employees are exempt from the rules of overtime.
A note about the word “employees” – Only employees may be eligible for overtime pay. There must be an employer-employee relationship. Independent contractors and freelancers are not employees and are not eligible to receive overtime pay or required to receive minimum wage. Employers sometimes try to misclassify employees as independent contractors specifically to avoid paying overtime. If you think this is happening to you, consider contacting an employment attorney at Leeds Brown who can accurately analyze the factors that determine your job classification and provide guidance on how to recover any overtime you are owed.
Employees who are exempt from overtime can fall into one of a few categories. They are employees who earn above a certain salary threshold AND perform professional, executive or administrative functions. The salary threshold is set out by federal and state law. New York has higher salary requirements to be exempt from overtime than the FLSA does.
Businesses regularly try to avoid overtime costs by giving people job titles that appear on the surface to exempt them from getting overtime pay. For example, calling someone an administrative assistant or executive assistant does not mean that person is not legally entitled to overtime. Assuming an employee meets the salary threshold, he or she must also undergo a duties test before understanding if there is an exemption. The actual job functions and duties must involve true administrative and executive responsibilities and tasks as set out in the guidelines. For example, the FLSA administrative exemption states:
“To qualify for the administrative employee exemption, all of the following tests must be met:
- The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
- The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
- The employee’s primary duty includes the exercise of discretion and independent judgment with respect
to matters of significance.”
When deciding if someone falls into this exemption, there must be an analysis of each one of its elements. The Wage and Hour Division of the US Labor Department explains:
“Primary duty” means the principal, main, major or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole.”
“Work “directly related to management or general business operations” includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations; government relations; computer network, Internet and database administration; legal and regulatory compliance; and similar activities.”
Discretion and judgment “implies that the employee has authority to make an independent choice, free from immediate direction or supervision.” https://www.dol.gov/whd/overtime/fs17c_administrative.pdf
Let’s say you earn $460 per week as an “administrative assistant.” Your only job every day is to answer the phone and put calls through to employees, taking messages as needed. No one asks you to do anything else, and you are not expected to take on any additional tasks. The only independent judgment you exert is deciding who to route the calls to when the caller is unsure of the person with whom to speak. You likely don’t fall under the administrative exemption to overtime and should be receiving time and a half if you work more than 40 hours in a week.
What is the Bottom Line for Most Employees?
The truth is that most employees in New York State and elsewhere are employed at-will. But, that in no way means that you are without rights! Let’s review. You may have the right to:
- Receive minimum wages
- Receive overtime pay
- Receive pay for every hour you perform work
- Work in a place free from sexual harassment
- Have freedom from retaliation for exercising your legal rights
- Take time to vote
- Fulfill your military obligations
- Protect yourself from workplace discrimination
- Receive equal pay
- Report fraud against the government
- Take FMLA leave
- Request reasonable accommodations for a disability or pregnancy
- Collect unpaid wages including overtime
- File a breach of contract action
- Get paid promptly
- File a whistleblower claim
- File a discrimination claim
- File a retaliation claim
There are laws at the federal, state and New York City levels that protect employees from unscrupulous or ignorant employers. When you assume that as an at-will employee you are without recourse, think again and contact employment law attorneys at Leeds Brown.
Are you an employee in New York City or the surrounding metropolitan area who has lost his or her job recently? Do you work for someone who owes you wages? Have you faced sexual harassment or gender discrimination in the workplace? Did you request a reasonable accommodation and get fired? If so, consider seeking counsel from experienced employment lawyers who represent employees in New York, like the ones at Leeds Brown.
No industry is immune from violating employee’s rights. Construction workers, home health aides, factory workers, waiters, waitresses, retail employees, managers, office workers and more can find themselves suffering from retaliation, workplace discrimination, wrongful termination and unpaid wages. When it happens to you, you can benefit from having skilled and passionate advocates working on your behalf.
Leeds Brown has been working to help New Yorkers enforce their employment rights for decades. We are devoted to our clients, and it shows in the aggressive way that we advocate on their behalf. Our lawyers work tirelessly to recover outcomes that provide fair compensation to employees for the harm they suffer. We know what it takes to navigate a complex employment claim whether it is filed with the EEOC, the New York Human Rights Division or in civil court. We have handled thousands of employment discrimination, sex harassment, retaliation and unpaid wage claims under state and federal law. If you want attorneys in New York to help negotiate a settlement or represent your interests at trial, Leeds Brown is the firm to call.
Time is often of the essence in most cases so contact Leeds Brown as soon as you think you have a problem. We can’t know how much time you have to file a claim until we hear the facts of your case. Call our office today for a free consultation at 1-800-585-4658. We are available to speak with you 24/7 so don’t wait. Call now and receive professional and personal attention from attorneys at Leeds Brown, representing employees in New York.