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Guide To Understanding Employment at Will in New York

If you have been terminated by your employer this page will provide you with some basic legal background.

This is not intended to be a substitute for legal advice. You should consult with an experienced and knowledgeable attorney to discuss your specific situation as soon as possible.

Consider the following scenarios ...

Dave is 39 years old and worked for XYZ Company for 21 years. He planned to work for XYZ until he retired. He worked hard and was well liked by his supervisor. Over the years Dave received numerous performance appraisals, indicating that his performance was above average to excellent.

One Friday as Dave prepared to leave for the day he was told to report to the supervisor's office. At that time the supervisor told him that he was sorry but they would have to let him go. No reason was provided.

Amy is 20 years old and worked at the local drug store for the past six months. One day when she reported to work as scheduled she was handed her paycheck and told that her services would no longer be needed. No reason was provided.

Neither Amy nor Dave had a written contract with the employer which specified the duration of employment, nor did the employer expressly restrict its right to terminate only for cause. In addition, neither was given any verbal guarantees that the employer would continue their employment for a certain length of time. Under New York State law, Amy and Dave were employees "at will" and could be terminated for any reason or no reason at all. Thus, under those circumstances Amy and Dave do not have a claim against their employer.

In other instances, however, an employee may have protection from termination at will by an individual contract of employment, a Union collective bargaining agreement, or if the employee's termination is covered by the Federal or State laws outlined below.

How Do I Know If I Am An Employee At Will?

In New York State you may be an employee at will if:

• you are not a civil service employee; and/or
• you are not a member of a union; and/or
• you do not have a contract of employment with your employer specifying the duration of your employment or otherwise limiting the employer's right to terminate you at will.

Must An Employment Contract Be Written?

In New York a contract may be express (e.g., you sign a written contract which states that you will be employed for two years, or which provides that you will only be terminated for "just cause"). It may also be an implied contract (e.g., your employer has a handbook which limits its ability to terminate you by, for example, providing for progressive discipline (verbal warning, written warning, suspension) prior to termination, or which otherwise restricts its right to terminate you at will. Many company handbooks, however, contain statements that nothing contained therein shall constitute a contract of employment).

What Does It Mean To Be An Employee At Will?

If you are an employee at will, you can leave your employment at any time for any reason or no reason and YOUR EMPLOYER CAN TERMINATE YOUR EMPLOYMENT AT ANY TIME FOR ANY REASON OR NO REASON AT ALL. This applies whether you are employed for one day, six months, or twenty-five years. There are some exceptions.

Are There Exceptions To The Rule?

There are a number of Federal and State laws which provide some restrictions on an employer's right to terminate an employee at will.

Major Federal Laws Include:

• Title VII of the Civil Rights Act of 1964 prohibits employers with 15 or more employees from discriminating against employees on the basis of their "race, color, religion, sex, or national origin." Discrimination based on gender includes "pregnancy, childbirth, or related medical conditions."
• Age Discrimination in Employment Act prohibits employers with twenty or more employees from discriminating against individuals who are age 40 or over on the basis of their age.
• Americans with Disabilities Act prohibits employers with fifteen or more employees from discriminating against an individual on the basis of his or her disability.
• Uniformed Services Employment and Reemployment Act of 1994 prohibits discrimination on the basis of past, present, or future membership in a uniformed service or on the basis of disabilities resulting therefrom.
• Family and Medical Leave Act prohibits employers with fifty or more employees from discharging or discriminating against any employee for opposing any practice made unlawful by the FMLA or for involvement in any proceeding under or relating to the FMLA. An otherwise eligible employee who has worked at least 1,250 hours in the year immediately preceding commencement of the leave year, is allowed to take up to 12 weeks of unpaid leave during any 12 month period to respond to personal or family health and medical problems. Upon return from leave the employee generally must be restored to his or her original position or to a position of equivalent status and benefits.
• National Labor Relations Act protects employees from reprisals from their employers for engaging in, or for refraining from engaging in, union activities or protected concerted activities (making complaints to the employer in concert with other employees regarding wages, hours, and other terms or conditions of employment).
• Fair Labor Standards Act prohibits an employer from discharging or discriminating against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to the Act or for participating in any such proceeding.
• Employee Retirement Income Security Act prohibits an employer from discharging an employee for exercising a right under a benefit plan or under the Act, or discharging an employee for the purpose of interfering with the attainment of plan rights.
• Occupational Safety & Health Act prohibits discharge or discrimination of employees on the basis of filing safety and health complaints or for otherwise exercising their rights under the Act.

Major New York State Laws Include:

• New York Human Rights Law which prohibits employers with 4 or more employees from discriminating on the basis of race, creed, color, national origin, age (if the employee is age 18 or older), sex, disability, pregnancy and marital status; and, in some cases, arrest record or criminal convictions.

There are a number of other New York State laws which prohibit the discharge of an employee due to:

• serving jury duty
• claiming or attempting to claim workers' compensation or disability benefits
• filing a complaint or participating in a proceeding under the New York Human Rights Law
• filing a complaint about a violation of the Labor Law or testifying or participating in a proceeding relating thereto
• reporting, threatening to report, or refusing to participate in an employer's violation of a law or regulation that poses substantial and specific danger to public health or safety
• engaging in certain kinds of lawful, off-duty and off-work premises activities
• appearing as a witness in a criminal action.

What Should I Do If I Am A Member Of A Bargaining Unit Represented By A Union?

If you are employed in a bargaining unit represented by a union you should contact your union representative immediately to file a grievance. Many collective bargaining agreements contain grievance procedures which require that a grievance be filed within a very short period of time. If you do not file a grievance within the time limits, the grievance may be waived.

What Should I Do If I Believe I Have Been Wrongfully Terminated?

If you believe your employer terminated you for a prohibited reason, even if that reason is not covered by the non-comprehensive listing of Federal and New York State statutes listed above, or if you are uncertain about whether or not your employer has engaged in illegal conduct, you should immediately consult with an attorney to discuss your legal options. Failure to observe established time limits (some of which are very short) for bringing certain actions may result in your forfeiting the right to pursue legal action. YOU SHOULD TAKE ACTION AS SOON AS POSSIBLE.

THIS PAGE PROVIDES A GENERAL OVERVIEW OF THE LAW. IT IS NOT INTENDED AS LEGAL ADVICE, NOR SHOULD IT BE CONSIDERED A SUBSTITUTE FOR CONSULTING AN ATTORNEY WITH EXPERIENCE IN THIS AREA. IN EVERY INSTANCE, THE BAR ASSOCIATION OF ERIE COUNTY RECOMMENDS THAT YOU CONSULT WITH AN ATTORNEY TO DISCUSS THE SPECIFIC FACTS OF YOUR SITUATION.