Question

Can I Sue My Employer For Retaliation If I Have Been Wrongfully Terminated in New York?

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Siobhan Klassen - Employment Litigation - Super Lawyers

Answered by: Siobhan Klassen

Phillips & Associates, Attorneys at Law PLLC
New York, NY

Fax: 212-901-2107

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If your employer recently terminated you and you think it may have been in retaliation for standing up for your rights, you could have a case against your employer for wrongful termination. You should consider several factors to determine whether to pursue a case. First, you must understand the legal meanings of wrongful termination and retaliation under New York and federal law. Then you must determine if they both apply in your case. An experienced employment law attorney can help you make that determination. 

Wrongful termination

Many employment relationships in New York, and nationwide, are at will. That means either the employer or the employee can terminate the employment relationship at any time, for any reason, or even no reason. The employer cannot, however, fire someone for an illegal reason, like discrimination or exercising a legal right in the workplace. Terminating an employee for an illegal reason is a wrongful termination. 

Under federal law, an employer cannot discriminate against someone because of their inclusion in a protected class, which includes:

  • National origin
  • Race
  • Religion
  • Sex (including pregnancy and family status)
  • Age
  • Disability 

New York law follows the federal law, but expands protection to sexual orientation and victims of domestic violence. In addition, the federal laws generally only apply to employers with 15 or more employees, but New York’s Human Rights Law applies to employers with four or more employees.  Additionally, under New York’s Human Rights Law, claims of sexual harassment may be viable regardless of the employer’s number of employees. 

Forms of discrimination could include hiring, compensation, harassment, work conditions or firing. For example, refusing to hire someone based on race, passing over a woman for a promotion because she is pregnant and firing someone because they are the oldest person at the company are all violations of the law. 

Retaliation law

Retaliation is separate from, but may relate to, a wrongful termination claim. When an employer retaliates against an employee for asserting a legal right, such retaliation is illegal. Employee actions protected from retaliation may include:

  • You may report illegal activity or some other wrongdoing happening at your company or government agency, whether to a higher-up or the proper authorities.
  • Participating in a discrimination claim. Whether you file a claim, support someone else’s claim or assist in an investigation of discrimination, the law protects your actions.
  • Asserting a legal right. Many laws protect New York workers, such as FMLA leave or the right to accommodations for a disability, and your employer should not punish you for asserting them.
  • Filing a workers’ compensation claim. You have a right to workers’ compensation benefits. If you have a workplace injury or illness, your employer should not penalize you for using them.
  • Union activity. New York employers cannot retaliate against employees for participating in union activity, trying to organize a workers’ union or discussing work conditions with other employees.

Retaliation can take many forms. An employer may fire the employee, but may also retaliate in more subtle ways. For example, they may reassign the employee less desirable work, cut their hours or bully them. New York City has strict laws regarding retaliation, but proving retaliation can be difficult. Employers are often careful to cite business reasons for the changes and may target the employee for criticism in their work to create a paper trail for demotions or firings. 

When retaliation coincides with wrongful termination

Wrongful termination is a legal term that covers any time an employer fires an employee for a reason not allowed under the law, and retaliation is one of those disallowed reasons. If you have been fired for exercising a legally protected right in the workplace, you may have a strong case against your employer for retaliation and wrongful termination. In order to bring your case, however, you must be able to prove this connection. We recommend you speak with a skilled employment law attorney. Your attorney will help you document and build your case to show that your termination was unlawful. 

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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