When Can Someone Sue for Wrongful Termination in New York?

Hirings and firings are normal occurrences in the course of doing business, but sometimes a New York employer’s actions when terminating an employee violates a federal, state, or city law and leaves them open to liability should their former employee file a lawsuit. There are a number of protections afforded to employees under federal, New York state, and New York City laws – violating any of them can give an employee a claim for wrongful termination.

At-Will Employment Standard

In a majority of cases, New York employers can terminate an employee for any reason or no reason. New York is an “at-will” employment state, meaning the business relationship between an employer and employee can be terminated by either party on any basis. A termination can be lawful and still come across as unethical or unfair. However, there are some key exceptions to this general rule that could give rise to either wrongful termination claims or another type of lawsuit.

What Employer Conduct Can Give Rise to Liability?

Discrimination

Employers are prohibited from firing employees of a protected class for any discriminatory reason by federal, state, and city law in New York City. An employee may not be discriminated against or terminated because of their:

  • Race
  • National Origin
  • Religion
  • Age
  • Gender
  • Sexual Orientation
  • Pregnancy
  • Disability.

An employee who complains of discrimination and is then fired may have an additional claim for wrongful termination and possible retaliation.

Sexual Harassment

Another “at-will” exception is terminating an employee after they are victims of or report sexual harassment in the workplace. Sexual harassment covers a wide array of behaviors and situations, from inappropriate comments, joking, or touching, to the request for sexual favors, to the termination of an employee for ending a consensual sexual relationship with their coworker or their supervisor. New York State and New York City have Human Rights Laws in place that prohibit any type of sexual discrimination, sexual harassment, or retaliatory behavior for reporting this conduct. If an employee was sexually harassed and fired for complaining about it, a claim for wrongful termination may exist.

Whistleblowing

Both federal and New York law have “whistleblower” provisions where, in some situations, an employee is authorized to report illegal activity at their place of employment to the appropriate authorities. The whistleblower laws shield the reporting employee from retaliation by their employer, up to and including termination, for alerting authorities to corruption or other wrongful conduct by their employer.

New York Employment Lawyer

Employers in New York benefit from the state’s “at-will” status, as they have a great deal of freedom to run their businesses and handle personnel decisions as they see fit. However, it’s important to know the boundaries you may not cross as an employer without subjecting yourself to legal and financial liability. To make sure you comply with the current laws when making personnel decisions, talking with the experienced employment lawyers at MOWK Law beforehand can save you time, money, and legal headaches. Contact us today with your questions and let us help you stay on the right side of the law.

Best Interview Practices

What Are the Best Interview Practices for New York City Employers?

Interviewing candidates for a position in your company is a necessity for most employers in New York City, but can quickly turn into a legal minefield by asking the wrong questions or discussing the wrong topics. To avoid potential liability issues, there are some basic rules employers should know about during the application process and when conducting interviews.

Legal and Illegal Questions

Employers may ask questions regarding a candidate’s resume, education, and relevant topics related to the job. For example, it is legal to ask if an applicant:

  • If they are 18 years of age or older;
  • Can perform specific tasks in a reasonable manner;
  • Has commitments that preclude them from meeting job schedules;
  • Are a citizen of the United States, have the legal right to remain permanently, or are eligible to work during a specific period;
  • Has served in the military, and, if so, has received a dishonorable discharge; and
  • Has a valid drivers license (if it is necessary for the position).

However, many broad categories of inquiries are unlawful. For employers with four or more employees, application forms and interviews may not ask questions expressing limitation or specification regarding:

  • Age (including inquiries designed to discover age such as “What year did you graduate?”);
  • Race;
  • Creed;
  • Color;
  • National origin;
  • Military status;
  • Sex (including gender identity and transgender);
  • Sexual orientation;
  • Disability;
  • Marital status (including maiden name of a married woman);
  • Predisposing genetic characteristics; or
  • Domestic violence victim status.

Criminal History                    

The New York State Division of Human Rights states that an employer may not use an application form or make any inquiry about certain arrests and criminal convictions an employee may have received. Some restrictions include questions regarding:

  • Youthful offender convictions;
  • A conviction sealed by the court; and
  • An arrest that is not pending and did not result in conviction.

Under New York law, private employers with more than 10 employees and all public employers are also prohibited from discriminating against an applicant based on criminal convictions unless a “direct relationship” exists between the specific job or opportunity at issue and the criminal offense. The nature of the conduct must have a direct bearing on the applicant’s fitness or their ability to perform one or more responsibilities or duties necessarily related to the job.

Producing Documents

Though an employer may verify information a candidate provides and ask for documents verifying their identity and right to work in the United States when they accept a position and begin work such as a passport or government ID and Social Security Card), there are unlawful inquiries that must not be made. Employers may not:

  • Require production of naturalization papers, a birth certificate, or baptismal records;
  • Require or offer applicants an option to affix a photo to their employment form any time prior to hiring;
  • Require production of a driver’s license or
  • Require names or identifying information of any family not employed at the company or an emergency contact.

New York Employment Lawyer

Increasing and ever-changing employment regulations make it more challenging for employers to lawfully manage a workplace and comply with all state and federal laws. To comply with proper hiring procedures, consulting the experienced employment lawyers at MOWK Law for preventative measures can save time, money, and countless legal headaches. Contact us today with your questions and let us help you stay on the right side of the law.

Can My Employer Enforce a Non-compete Agreement in New York City?

What Should I Include in a Non-Compete Agreement for Employees in New York City?

New York City is a concrete jungle, and competition in the city is fierce. There are multiple vendors for almost every good and providers for almost every service imaginable within a few blocks of one another, so it is no surprise employers may worry their employees will leave for greener pastures at a competitor’s business with little or no notice. To prevent this, many employers require onboarding employees sign a restrictive covenant known as a non-compete agreement as part of their employment agreement when they begin a position at a company – especially if an employee will acquire a special skill, training, or knowledge during the course of employment. For employers, it is important to know what they can include in non-compete clauses and the what they mean for employers and employees.

Designating Competitors for Purposes of Non-Compete Agreements

When drawing up a non-compete agreement, there is nothing concrete limiting the scope an employer may choose when they are limiting the businesses and competition for whom an employee may later work. However, depending on the nature of your business, former employees may have few or no options if you are a niche industry or they have a very specific set of skills developed from their position at your company. Additionally, some former employees may not see certain companies as competitors even if you do – so to avoid uncertainty it can be helpful to include language listing specific skills, job duties, or companies you consider competitors in the non-compete clause.

Reasonableness

In New York, non-compete agreements are vague in two very important areas – they are expected to last only a reasonable period of time and be applicable only within a reasonable distance from the location of your business. These reasonableness standards may seem innocuous on their face, but depending upon the structure of your particular non-compete clause your language can have serious consequences for employees looking to leave their your company and may also impact whether your restrictive covenant would be found reasonable if it faced legal challenges in the future.

Potential Employee Considerations

Employers should consider the language and provisions of their non-compete agreements carefully, because length of time as well as geographic area can have a significant impact not only on employees currently at your company, but on you as the employer when recruiting quality candidates to join your business. A non-compete agreement that lasts for a significant period of time and covers a large amount of territory could greatly affect someone’s ability to find a job for a long time in a small geographic area like New York City – a 20-mile geographic restriction could preclude an employee from hundreds or even thousands of future opportunities for years. Severe restrictions could cause you to lose excellent candidates for an open position if potential employees believe working for you would negatively affect their future career path. New York also encourages

New York Employment Law Attorneys

New York encourages job seekers to closely scrutinize all non-competes before signing them and agreeing to work, so consulting with an experienced New York employment attorney could help you find the right balance with your non-compete agreement to avoid losing valuable candidates while also protecting your business interests. At MOWK Law, we have the employment law experience you want writing or reviewing these important workplace documents. Give us a call today to learn how we can help.

Employee Rights

Liability for Misclassification of Employees in New York City

Recourse for Employee Misclassification
in New York City

As more employers focus on engaging independent contractors as opposed to additional employees in order to handle their workload, they must avoid the all too common pitfall of misclassifying the human capital they utilize. In many situations it can be economically advantageous to use independent contractors instead of hiring employees because employers can:

  • Pay flat fees instead of complying with the federal and state minimum wage and overtime laws that apply to employees;
  • Ask contractors to supply their own equipment;
  • Not reimburse independent contractors for incurred expenses;
  • Avoid the requirement of paying unemployment insurance, social security, temporary disability, or workers compensation; and
  • Avoid payroll taxes.

Notwithstanding the potentially significant benefits to employers, there can be severe penalties for misclassifying employers as independent contractors that often outweigh utilizing this system. Depending upon the Department of Labor’s findings as to the employer’s intentions, fines and back payments, owed benefits, and other escalating penalties may be imposed upon the offending business.

Increased Protections for Independent Contractors

Even though independent contractors in New York do not have many of the same entitlements as employees, they still have protections under federal, state, and in some cases city laws. New York City took an additional step when it enacted the Freelance Isn’t Free Act – a non-waivable law applicable to all independent contractors in New York City notwithstanding immigration status. The Act protects every independent contractor’s right to participate in a class action against any hiring party, requires agreement terms between hiring parties and contractors over $800 be in writing, ensures freedom from mandatory arbitration, and protects them from retaliation by hiring parties. Thus, even when properly classifying independent contractors, the hiring party may still be liable for any wrongful conduct towards this class of individuals.

Unintentional vs. Intentional
Misclassification of Employees

When the New York Department of Labor finds unintentional misclassification of employees took place, penalties may be assessed for:

  • Every unfiled W2 proven;
  • Portions of each misclassified employee’s owed wages plus accrued interest;
  • Percentages of each misclassified employee’s Medicare and Social Security contributions; and
  • Assessments equal to the employer’s matching contributions for employee benefits.

However, the penalties may be much heavier when an employer is found to have intentionally misclassified employees as independent contractors for purposes of avoiding disability insurance premiums or contributing for payroll taxes. Financial penalties can range up to 20% of all employee wages paid by the employer and 100% of Medicare and Social Security contributions by both employer and employee. Intentional misclassification may also give rise to criminal liability including criminal penalties and even prison time.

Additional Penalties and Consequences

Employers may also be required to compensate a misclassified employee for benefits they did not receive as a result of being improperly deemed an independent contractor. Payments for overtime, break time, paid time off, 401(k) contributions, and healthcare coverage may follow.

Aside from fines, back pay, back benefits, and penalties, employers may also have to deal with class action lawsuits brought by misclassified employees, associated bad publicity, audits, and potentially even punitive damages.

New York Employee Misclassification Lawyers

If you feel like you have been wrongly classified and are missing out on important benefits as an employee, you probably are. At MOWK Law, we are experienced New York employment lawyers that can help rectify the situation in or out of court with your employer. Get in touch with us today to learn more about your legal rights as an employee and how we can help.