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LegalKnowledge, Attorney
Category: Employment Law
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Experience:  10+ years handling Legal, Real Estate, Criminal Law, Family Law, Traffic matters.
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I was fired with no verbal or written warning. can I sue

Customer Question

I was fired with no verbal or written warning. can I sue
Submitted: 1 year ago.
Category: Employment Law
Expert:  LegalKnowledge replied 1 year ago.

Good afternoon. It depends on the type of employee that you are. New York State is generally considered to be an "employment at will" state, which means that a private sector employer can pretty much hire and fire as he or she pleases and a discharged employee usually will have no legal recourse even when the discharge is unfair or unreasonable. However, there are certain circumstances under which the discharge of an employee is against the law and will entitle the discharged employee to government intervention on his or her behalf and other circumstances where a discharged employee has the right to sue his or her employer for damages and/or reinstatement.

  1. If you are a member of a union and are employed pursuant to a union contract, you are entitled to all the protection against discharge written into that contract, including seniority protection and the contract's grievance procedure. Consult your union representative for assistance.

  2. Even if you are not a union member, you might still be employed pursuant to a written contract of employment which limits the right of your employer to terminate your services. Check the terms of the contract and consult your attorney if you think your discharge is a contract violation.

  3. Some employers distribute an employee manual which recites the conditions under which an employee may be discharged and/or preliminary disciplinary steps which will precede discharge. For example, an employee manual might typically provide that an employee whose performance is below standard in some respect shall receive a counseling letter, followed perhaps by a hearing or interview designed to address the performance problem, before being discharged. Under certain very limited circumstances, some employee manuals have been found to create an implied contract of employmententitling an employee to all the protections against discharge that are written into the manual. Check your employee manual and consult your attorney if you have been discharged in violation of its terms. Discharge in violation of either a written or implied contract of employment might entitle an employee to sue his employer for reinstatement and lost wages.

  4. A "whistleblower", that is, an employee who is fired for reporting to a supervisor or to a public agency a violation of law which creates and presents a substantial and specific danger to public health and safety, or who is fired for refusing to participate in such conduct, can sue his employer for reinstatement, back pay and attorney's fees. For example, if you report your employer to the Environmental Protection Agency for illegal dumping of toxic waste, you might be a protected "whistleblower". An employee who is fired for complaining to his employer or to the Department of Labor of a labor law violation can also sue his employer for reinstatement, back pay and attorney's fees. For example, if your employer fires you because you complain of receiving less than the statutory minimum wage, you might be protected under the provisions of the labor law banning retaliation for such complaints. In either case, you should consult an attorney to determine whether legal action is appropriate.

  5. An employee who is discharged because of his participation, on his own time, in lawful political or recreational activities can bring an action against his employer for damages and equitable relief. If you believe you have been discharged because of your involvement in such legitimate pursuits, you should consult your attorney to discuss possible legal action and report the circumstances of your discharge to the Attorney General, who also has jurisdiction to seek injunctive relief and penalties against your employer.

  6. The New York State Human Rights Law prohibits an employer from discharging an employee because of his or her race, religion, gender, place of national origin, age, marital status or disability. In New York City, employers are also prohibited from discharging employees on account of their sexual orientation, arrest or conviction record, partnership status, or status as a victim of domestic violence, stalking and sex offenses. Violations of the Human Rights Law can give rise to a private lawsuit, but may also be reported to the New York State Division of Human Rights or the New York City Commission on Human Rights, both of which have jurisdiction to investigate complaints and enforce compliance.

  7. The Workers' Compensation Law prohibits an employer from discharging a worker because he has filed a Workers' Compensation or Disability Benefits claim or has testified before the Workers' Compensation Board. Complaints of such retaliatory discharge may be made to the Workers' Compensation Board.

  8. Jury duty is an important obligation of all citizens. No employer who is notified in advance of a jury duty summons may fire an employee because of that absence. Employees who are fired because of their absence from work to fulfill a jury duty obligation should contact the Attorney General for assistance.