When should I call an employment lawyer?
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.
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?
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.
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.
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.
Pregnancy discrimination is on the rise. Too many people are unaware of their rights under the law. Set forth below are some of the protections afforded under Title VII of the Civil Rights Act. Title VII's pregnancy-related protections include: Hiring: An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers.
Pregnancy Discrimination - Pregnancy and Maternity Leave:
- An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work. However, if an employer requires its employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statement.
- If an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled because of pregnancy to do the same.
- Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby's birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth. Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave
Pregnancy Discrimination - Health Insurance:
- Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. An employer need not provide health insurance for expenses arising from abortion, except where the life of the mother is endangered.
- Pregnancy-related expenses should be reimbursed exactly as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable-and-customary-charge basis.
- The amounts payable by the insurance provider can be limited only to the same extent as amounts payable for other conditions. No additional, increased, or larger deductible can be imposed.
- Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees.
Pregnancy Discrimination - Fringe Benefits:
- Pregnancy-related benefits cannot be limited to married employees. In an all-female workforce or job classification, benefits must be provided for pregnancy-related conditions if benefits are provided for other medical conditions.
- If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions. Employees on leave because of pregnancy-related conditions must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.
Retaliation: It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.
If you believe you have been the victim of pregnancy discrimination, please contact us.