Termination

I Am Being Asked To Resign - What Should I Do?

It happens from time to time: an employer offers an employee an opportunity to resign instead of being laid off.  Seems like the employer is doing a nice thing – allowing the employee to “save face” by resigning rather than going through the indignity of being let go.  But appearances can be deceiving.  All else being equal, when presented with this option, you should not resign.  Rather, it is time to negotiate.

Just because your employer asks you to resign, that does not mean that you have to.  Assuming you are an employee at will, quitting is entirely up to you.  You can (but don’t have to) quit at any time for any reason.  Similarly, an employer can terminate you at any time for any reason.  Think about that for a moment – your employer has the power to fire you at any time for any reason, yet they are asking you to quit.  Seems weird, right?  That’s because it is.

Before you accept your employer’s offer to resign, consider asking these questions first:

1.      Why do you want me to resign?

2.      Will the company oppose my application for employment?

3.      How will reference requests be handled?

4.      Am I getting severance?

5.      Is there an agreement for my attorney and me to review?

Reasons not to quit:

1.      You might have valid discrimination claims against the company.  Most employment discrimination lawsuits require that you suffer an “adverse employment action” in order to sue.  An adverse employment action is something that the employer does to make your employment worse (i.e. fire, suspend, demote, etc.).  If you quit, though, the adverse employment action was committed by YOU, not the company.  It is pretty hard to argue that you were fired because of your race, age, gender, etc. if you voluntarily resigned.

2.      You might be denied unemployment.  Generally, employees who quit of their own accord do not get unemployment.  Money matters; if nothing else, by resigning, you may be giving up your right to collect unemployment, whereas if you are laid off, you likely will get unemployment benefits.

3.      You are not getting anything.  There is an inherent quid pro quo to the employer- employee relationship.  Why are you going to give the company something (by quitting), for nothing?  You do what the employer asks you to do for pay.  Quitting is no different.

What an employment lawyer can do for you:

Disclaimer – I’m biased.  I help employees end their employment relationships (good and bad) all the time.  Employment lawyers can help you in several ways.  Below are just a few:

1.      Negotiate Severance.  This firm specializes in severance.  Why not get some money on the way out in exchange for the promises that go along with your agreement to resign?

2.      Negotiate References.  Whether you resign or your employment is terminated, it is critical to have some control over how the end of your employment is communicated to potential employers.  We can help you with this and get agreed-upon terms for how your employment is described to others.

3.      Negotiate other Benefits.  Leaving employment has many factors other than just severance pay and references.  We can help negotiate your insurance coverage, stock options, end date, transition assistance, and application for unemployment.  Our goal as employment lawyers is to assist you in a seamless transition from your old job to your future.  If you are being asked to resign, contact us today to schedule a consultation. 

I'm about to get fired ... what should I do?

We get this call all the time. You have been with your company for a while and are starting to see the writing on the wall.   You know you are about to get fired – what should you do? First, unless you have a contract, you are an employee at will. Thus, your employer can fire you at any time for any reason – good reason, bad reason, or no reason at all. Similarly, you can quit your job at any time for any reason.

However, your employer may not terminate your employment for an illegal reason. The next logical question then, is what makes the termination illegal. Termination of employment is illegal when it is based on gender, race, disability, age, religion, national origin, FMLA leave, pregnancy, sexual identity/orientation or sexual harassment. Termination of employment is also illegal when it is undertaken because you have complained about discrimination based on any of the above, or because you have complained about irregularities in payment of wages (like not paying overtime).

If you believe that any of the above situations apply to you, you should speak to an employment lawyer immediately. More likely than not, you should also complain, in writing, about the unlawful conduct. Federal and State employment laws prohibit employers from retaliating against you for complaining about actual or perceived discrimination. Thus, even if the underlying discrimination you have complained about is not illegal, you are protected from retaliation so long as your complaint was made in good faith. This is also true if you complain about discrimination against another employee – not just yourself.

If all else fails, you may have to file a complaint with the New York State Department of Human Rights or the Equal Employment Opportunity Commission, and perhaps state or federal court. If you speak to an employment attorney before your employment is terminated and before you have filed a complaint, you can be better prepared if and when the axe does fall.

If you believe that your employment is about to be terminated, feel free to contact us for a confidential consultation.

NY Employment Law -- What is the Duty to Mitigate?

If your employment has been unlawfully terminated, you may be entitled to recover damages in a variety of forms, including front pay.  Front pay is pay to a former employee for monies that he/she would have earned, but for the unlawful termination of employment. However, an employee who was unlawfully terminated cannot just sit at home and wait idly to collect front pay.  The law imposes what is called a "duty to mitigate," which means that the employee has the duty to mitigate his or her losses. If an employee fails to look for work, he/she will not be eligible for an award of front pay during any period in which he/she is not actively seeking work.  The phrase used by the courts is that the employee must be "ready, willing, and able" to obtain employment.  If, instead, the employee elects to stay home, he/she is considered to have withdrawn from the job market and, as a result, is ineligible to receive an award of front pay.  However, if the employee makes constant and good-faith efforts to seek similar employment, he/she is eligible to receive front pay if victorious at trial.

The cases are very fact specific and difficult to predict.  However, at least one thing is settled -- an employee who makes no attempt to look for work after an allegedly unlawful termination is deemed to have voluntarily withdrawn from the job market and is ineligible for an award of front pay for that time.  If you have any questions about your NY unlawful termination or the duty to mitigate, please contact us.

What is Wrongful Termination in New York?

NY Employment Lawyer
NY Employment Lawyer

Our NY employment attorneys often receive calls from potential clients who believe they suffered Wrongful Termination.  However, the term Wrongful Termination is misleading because in New York (and most other states), employment is “at will.” unless there a written agreement.  This generally means that employers can fire or terminate an employee for any reason, or for no reason at all.There are some exceptions to this rule.  For example,

  • Employers cannot discriminate against you on the basis of age, sex or gender, race, national origin, disability or perceived disability, pregnancy status, marital status, or sexual orientation and terminate you because you fall into one of these categories.
  • If you have an employment contract with your employer, which states that you cannot be fired without just cause for a specific period of time.

Otherwise, employers may terminate employees for any reason or for no reason at all.  You may find this surprising, but employers may fire you if they don’t like you, or even if they just don’t like the clothes you’re wearing.  It is perfectly legal for employers to be mean when they fire you or to have totally arbitrary reasons for firing you.

However, it is illegal for your employer to terminate you for a discriminatory reason.  if you believe you have been fired forreasons that may constitute employment discrimination or a breach of contract , then you should consider consulting with an attorney.  Our NY employment attorneys are here to help -- please contact us for a consultation if you feel that you have been a victim of wrongful termination or discrimination of any kind.

What is workplace retaliation?

Our New York Employment Lawyers are often contacted by employees who believe that they are being illegally retaliated against. Workplace retaliation is unlawful. If you feel you have been retaliated against for making complaints in the workplace, you should know if you are protected under the law.  Our experienced employment lawyers can help yo to determine if you are being retaliated against. Think about these questions to see if you might be a victim of unlawful retaliation:

  1. Have you recently objected to any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?
  2. Have you recently refused to participate in any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation?
  3. Have you recently disclosed, or threatened to disclose, to any appropriate governmental agency an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation?
  4. Have you recently provided information to, or testified before, any appropriate governmental agency, person, or entity conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule, or regulation by the employer?

Here are some examples of other types of complaints where the law protects you from retaliation.

Discrimination: If you are the victim of discrimination or harassment based upon your race, age, sex, religion, national origin, color, disability, genetic information, disability, sexual orientation, or your association with a person in one of these categories, then you have to follow your employer’s published discrimination/harassment policy and report it.

Wage/overtime violations: If you’re terminated for objecting to failure to pay wages owed or failure to pay overtime, you may be protected from retaliation under the Fair Labor Standards Act or your state’s wage/hour laws.

What to do:

  1. Put it in writing even if the employer’s policy says to have a meeting. You can present the written document at the meeting.  That way you have proof that you complained about something that’s protected.
  2. If you complain, keep it professional and to the point. Stick to the facts.
  3. Your employer is entitled to investigate your complaint. That means even if they have a policy of keeping your complaint confidential, your boss, the person you’re complaining about, and your witnesses and other coworkers will probably find out about it. Be prepared for that to happen, and be ready to report retaliation.
  4. If you are retaliated against for reporting something illegal, put your complaint of retaliation in writing. If the retaliation doesn’t stop, or if you get fired, disciplined, demoted, or a pay cut as a result, contact an employment attorney.

If you have any questions, or think you are being unlawfully retaliated against, contact us.  Our New York Employment Lawyers can help.

Do I Need An Employment Lawyer?

Do I need an employment lawyer? Our experienced New York Employment Lawyers get calls all the time for people who are not sure whether they need an employment lawyer. You cannot bring an action just because you think it was “unfair” to terminate your employment.  There is no such thing as “unlawful termination,” or “wrongful termination.”  Unless you have an employment contract, there is really no such thing as wrongful termination.  So how do you decide whether or not to contact an employment lawyer?

Why …

There are times during the course of your employment when you may need an attorney. For example:

Deadlines: Employment laws are a morass of confusing deadlines and procedural requirements.  If you do it yourself, you might miss something and lose your claim.

Confusing claims: There are some employment laws that you might not know about and there are some laws you think exist, that may not.

Being taken seriously: Some employers will not take you seriously unless you have representation.

Confrontation and advocacy: Some people do not want to find themselves in a confrontational situation or advocating for themselves. Sometimes it’s better to have someone else advocate for you.  Attorneys are trained advocates.

When …

You should contact a lawyer immediately if:

Your current or former employer sues or threatens to sue you;

You are being asked to sign an something that you don’t fully understand, like an employment agreement, non-compete, confidentiality clause, or arbitration agreement;

You have been retaliated against for complaining about discrimination or something illegal the employer has done;

You are not being paid all the wages you’re owed (including time and a half for overtime);

You are misclassified as exempt from overtime or as an independent contractor;

You believe that you have been a victim of discrimination based upon your race, sex, religion, ethnicity, disability, age, pregnancy, national origin, color, genetic information, objecting to discrimination, or request for medical leave to care for yourself or a family member.

Do I have a case?

That’s the million dollar question, isn’t it?  The devil is in the details, but the following checklist should be a good place to start:

Cases involving termination, demotion, or suspension without pay

If you answer “yes” to any of these questions, you may have a claim. Definitely contact us if any of these occurred shortly before you were terminated, demoted, suspended, or otherwise disciplined:

●          You made a worker’s compensation claim shortly before being fired.

●          You recently objected to, refused to participate in, or reported illegal activity or discrimination by the company

●          You recently had surgery, revealed the existence of a medical condition, genetic information or pregnancy.

●          Your employer made a false statement of fact (as opposed to opinion) about you to someone outside the company, such as a potential employer.

●          You recently performed jury duty.

●          You recently served in the military.

●          You recently took family or medical leave.

●          You recently served as a witness in a lawsuit or provided testimony or evidence to EEOC.

●          You recently engaged in activity for the benefit of co-workers with respect to terms and conditions of employment.

●          Your employer fail to pay you for all hours worked, or fail to pay overtime if you worked over 40 hours per week.  Many times, employees are misclassified as exempt and will be owed back wages for up to 2 - 3 years.

Discrimination claims

It is not illegal to discriminate against you for being you. Your boss does not have to like you.  He/she does not have to be nice to you.  However, if the discrimination or harassment fits into one of the categories below, you should contact us to find out more about your rights and your responsibility to report it before you make a claim.

● Race ● Sex ● Sexual harassment ● Religion ● Ethnicity ● Disability ● Age ● Pregnancy ● National origin ● Color ● Genetic information ● Retaliation for objecting to discrimination

If you feel that you have been treated differently than others of a different race, age, sex, national origin, disability, religion, sexual orientation, or color you should contact us.

Can My Employer Fire Me for Any Reason?

If you are an employee in the State of New York, you may wonder if your employer can fire you for any reason. The short answer is, yes. New York State is an "employment-at-will," state.   This means that as long as there is no contract to restrict firing (like a collective bargaining agreement), an employer has the right to terminate an employee at any time for any reason. However, this also protects the employee's right to resign. So, although an employer may fire you for no reason or for a reason that might seem arbitrary and unfair, you are free to resign at any time without explanation.

Please note that there are a few exceptions to the "employment-at-will" doctrine, the most significant of which are federal and state laws that prohibit discrimination (or discriminatory employment termination) based on things like race, national origin, age, disability, gender, sexual orientation or marital status.

There are also exceptions to the "employment-at-will" doctrine under § 201-d and § 215 of the New York State Labor Law.  Essentially these sections prohibit an employer from firing an employee for engaging in political or recreational activities outside of work, for the legal use of consumable products outside of work or for membership in a union and also prohibit an employer from penalizing an employee for making a complaint to the employer, to the Commissioner of Labor, or to the Commissioner's representative, about any provision of the Labor Law.

For more information, please visit the NY Department of Labor's website here.

The short answer to the question of "can my employer fire me for any reason" is yes, but you should definitely talk to an employment lawyer. If you have any questions about your employment or termination, please contact us!

Some Things to Think About If Your Employment is Terminated

What should I do if I get fired? Here some things to think about if your employment is terminated:

  • Were you offered severance agreement?  If so, make sure an attorney reviews the severance agreement.  You will be giving up rights, and may be agreeing to take less than you are entitled to or worth.
  • For example, if you have a pension, your severance agreement may be releasing your rights under ERISA, the federal law governing pensions. Make sure you are not accidentally giving up your pension rights. If you had an employer-matched 401 and are not vested, you are probably giving up the employer contribution to your 401.
  • Did you have a non-compete agreement?  If so, it could limit your ability to get a new job.  If not, your employer may include one (as part of your severance agreement), which may limit your ability to get a new job. If the time restriction is longer than the number of weeks of severance, it is probably not worth signing the agreement unless you are going into an entirely new field.
  • If you did sign a non-compete agreement prior to starting your job or during the course of your employment, you should also have an attorney review it for you to make sure you understand your limitations before you sign a severance agreement.  You will most likely be reaffirming those restrictions in a severance agreement, so may be giving up your defenses to the non-competition provisions.  Some employers will try to add restrictions you did not have, make the restrictions longer or for a larger geographic area.  Some know that they had an agreement that was not enforceable and use the severance agreement to put in place an enforceable provision.
  • Is the release mutual?  If the employer wants you to release them from any claims, they should also release you.  Some employers require employees to sign releases and then turn around and sue the former employee for alleged wrongdoing on the job.  Mutual releases assure that any claims are released by both sides.  In banking or other financial arenas, the employer will want an exception for undiscovered financial fraud/embezzlement, which should be acceptable.  But if they know about it at the time of the agreement, they should be willing to release it or give up their right to a release so the employee can assert any defenses or counterclaims he or she might have.
  • Is confidentiality mutual?  Employers want the severance agreement to be kept confidential.  But if the employer does not have to keep it confidential, they may get cute and say things to references like, “I have to look at the agreement to see what I’m allowed to say.”  Protect yourself and make sure that they can’t disclose the existence of the agreement to potential employers.
  • Include non-disparagement provisions.  You don’t want your employer to be able to say bad things to potential employers or to customers, co-workers or others in the community.  They will likely want the non-disparagement to be mutual, to keep you from bad-mouthing them, which is acceptable.  It is worth the peace of mind to know that they will not be making negative comments that keep you from future employment.
  • Do you have health insurance?  Many employers will pay some or all of your COBRA payments to tide you over while you are working.  You need to make sure you understand what will happen to your insurance benefits upon termination.
  • Do you have stock options, stock appreciation rights, or other similar rights?  Make sure the agreement is not making you give up valuable rights you may have.  If you were fired to keep you from vesting, you may have claims against the employer.
  • Do you have any potential claims against the employer?  Potential claims may give you leverage to negotiate a severance package if it is not offered, or to negotiate a better package.  Ask yourself some questions:
    • Am I of a different race, age, sex, national origin, marital status, color, or religion from those who were not terminated for the same reason or offense?  If so, you may have a discrimination claim.
    • Was I recently sexually harassed or the victim of other discriminatory harassment based upon race, age, religion, national origin, marital status, color, or disability?  You can’t be fired in retaliation for reporting such harassment.
    • Did I recently report, object to, or refuse to participate in discrimination, harassment, or illegal activity?  If so, you may be a whistleblower.
    • Did I recently make a worker’s compensation claim?  If so, it’s illegal to terminate you for making such a claim, and you also need to make sure you are not giving up your worker’s compensation claim in the agreement.
    • Did I recently take leave due to bereavement, sickness, disability, or serious medical condition of a family member?  If so, you may have a Family and Medical Leave Act claim.
    • Does the employer owe me overtime or wages?  Make sure you are paid what you are owed.  Plus, failure to pay wages is a great defense to a non-compete agreement.
    • Did I recently testify against the employer or in any court case where I was subpoenaed?  You can’t be terminated for your testimony under subpoena.
    • Am I pregnant?  You can’t be terminated for your pregnancy, or because you recently gave birth and the employer has stereotypical beliefs about women with children.
    • Did the employer breach a contract with me?
    • Am I over 40?  If so, in a layoff or redundancy, the employer is supposed to provide you with a list of the ages of the others laid off or made redundant so you can determine whether or not age discrimination has occurred.

If you are in doubt about your rights or any potential claims you may have, contact an attorney at our firm to discuss your options.  Someone will get back to you within 24 hours.