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.