Employment Law

Empowering Individuals
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What is the FMLA?

The FMLA, or Family & Medical Leave Act, protects employees who have to take time off of work to care for themselves or a loved one with a serious medical condition.  To learn more about this protective law, watch the video below.

 
 
Can my employer ask me why I am taking FMLA leave?
 
A very common question with an answer that surprises most employees.  Learn more here.
 
Can I pursue a claim for “wrongful termination”

One of the most frequent questions that we receive from potential employment clients is whether they can sue their former employer for wrongful termination. The scenario typically plays out one of two ways:

Scenario 1: Terri has been employed by Smith & Co. for five years. She has been a good employee, without any real problems. Smith & Co. has recently undergone some changes, and Terri now has a new team leader, Rich, who has been giving her a hard time about several things.

Within two months of Rich taking over Terri is placed on a performance improvement plan. Within a month of that she is called in to the office and told that things are just not working out. Terri, who has a spouse and two kids at home, is beside herself. She simply cannot fathom that her work performance has fallen so much over the course of three months to justify her termination.

Terri calls us and wonders if she has any claim against Smith & Co. for “wrongful termination.”

Scenario 2: John is looking for a job and applies with Smith & Co. The job is in a cutting edge field and John has minimal experience, but he interviews well and is hired with the understanding that he'll be given training when he comes on.

When John starts he's given training, but it is minimal, and the company is very busy so he's thrown to the fire quickly. His performance immediately falls behind and he is terminated three weeks after hire.

John calls us and wonders if he has any claim against Smith & Co. for “wrongful termination.”

New York Does Not, generally, recognize a claim for “Wrongful Termination”

Unfortunately for Terri and John, we are often forced to give the same answer – New York law does not generally recognize a claim for wrongful termination. Since New York is an “at-will” employment state, employers are generally permitted to hire and fire at will – just as employees are permitted to accept a job and then quit a few days later.

In Terri's case the first thing we would want to know is whether there was anything underlying the termination which may lead to a claim for discrimination. Were there comments about her gender, age, something else? Did Rich treat others differently, including men? Did she recently take a medical leave? Each of these would potentially give Terri a claim for discrimination.

As for John, unfortunately he may be out of luck. An employer in New York is not required to give proper training, and can throw an employee to the fire. The lesson for John is to be very careful about the company that you choose to do work for. The interview should be as much about them as it is about you. Because, unfortunately, if things go south an employee's options are often limited.

If you have questions about employment discrimination or “wrongful termination” in New York give us a call. We're happy to help.

Can I file a lawsuit if I was wrongfully terminated?

We frequently receive questions from potential clients who believe that they were “wrongfully terminated”&mash;in other words they were terminated without what they believe was a legitimate justification. Unfortunately they are often unhappy with the answer.

New York is an at-will employment state and does not, generally, recognize a legal cause of action for “wrongful termination.” In order to succeed on such a claim under New York State or applicable Federal law, the employee must be able to link that termination to their status as a member of a protected class, and that the termination was the result of some form of discrimination or retaliation.

Termination based upon discrimination often occurs because of an individual's race, age, gender, disability, religion or national origin. It can also take the form of retaliation for complaining about discrimination against the individual or, in some instances, a co-worker (this is also protected).

New York employment laws are protective of employers, and give the employer the right to not be nice to his or her employees. As a result, unless the employee was terminated for a discriminatory reason, the likelihood of succeeding on a “wrongful termination” claim is generally very low.

If you have questions about a New York discrimination, retaliation or sexual harassment claim feel free to fill out the contact form on this page or give us a call.  We're always happy to answer your questions and help in any way we can.

What does “at-will” employment mean?

If you were recently fired from your job and your employer did not give you a real reason as to why he was letting you go, you may feel as if his actions were illegal in some way.

 The truth is that you were probably an at-will employee. This means that an employer has the right to fire you at any time, for any reason, and he isn't even required to tell you why. Of course, this also allows an employee to quit his job for any reason, at any time, as well.

 Not sure if your employment was at-will? Try to grab a copy of your company's employee handbook, or the contract you signed when you started your job. There should be some type of wording in one or both of these documents outlining the details of your employment. They may not specifically say “at will,” but they would say something about the ability to let you go at any time.

 Some employers do not choose at-will employment and instead opt for “good cause.” This means they need a reasonable cause to fire you and those reasons should be clearly detailed for you.

 Though it may seem like at-will employees have no rights when it comes to keeping their jobs, they still cannot be fired for illegal reasons. These illegal reasons primarily revolve around discrimination, meaning you cannot be fired because of your age, gender, race, religion or disability. You also cannot be fired if you were exercising your legal rights, including missing a day of work or more for jury duty.

Trying to figure out if your termination was illegal? Request a free copy of our book, Welcome Back, You're Fired: Common, but Illegal, Examples of Discrimination in the Workplace (and Why Most Cases Fail

 
 
I am an employer, and I was just served with a document from the Department of Labor concerning an investigation. What should I do?

Department of Labor, Division of Workers Compensation or other agencies of the State or Federal Government generally have authority to conduct inspections of records, or “books” of an employer. If you are served with a notice for inspection it is crucial to contact an attorney as soon as possible, as the timelines for contesting such notices, or findings, are often very short.

How can I find out about some recent happenings in employment law?

Contact Us to hear more, or Check out our Blog page for updates.

I have heard the term “At-Will” used by an employer. What does that mean?

New York is an “at-will” employment state, which means that, generally, an employer can terminate an employee's employment for any reason, or no reason, just as an employee can quit for any or no reason. An employer cannot, however, terminate or otherwise treat an employee differently because of their age, race, gender, disability, national origin, religion or other status as a member of a “protected class.”

I believe I was wrongfully terminated, what can I do?

New York does not, generally, recognize a claim for “wrongful termination,” however if you were terminated or otherwise subjected to an unfair or unequal work environment you should contact an attorney.

How long do I have to file a claim if I believe I was the victim of workplace discrimination?

It varies. However, many claims for employment discrimination require the filing of an Administrative claim with the New York State Division of Human Rights and/or United States Equal Employment Opportunity Commission (EEOC). These agencies have shorter timelines, so it is important to consult with a discrimination lawyer right away.

Personal Injury

Have you been injured at a job site, or in a vehicle? D’Orazio Peterson is an experienced Personal Injury law firm. If you have experienced serious injury due to negligence or malice, be sure to contact us to see what we can do to help you receive the justice you deserve.

Employment Law

If you were recently laid off during maternity leave or you’re having trouble at work and think discrimination is to blame, you have the right to fight back against your employer’s poor behavior. D’Orazio Peterson handles employment law cases involving FMLA violations and incidents of discrimination based on age, gender, race or disability.

Medical Errors

Medical errors are a leading cause of death, and many are preventable. We work towards eliminating those errors.

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