I. INTRODUCTION– As an employment and labor lawyer in Westchester County, New York, I can’t begin to tell you how many calls I get from people who want to sue their employer for wrongful termination. Many of these calls are from people who were terminated under unfair circumstances and are seeking to sue in order to right a wrong. I hate to break it to them that there is no lawsuit for wrongful termination. Most people do not have the job protection they think they have. For example, I have seen someone lose their job because they came to work late too many times because they were caring for a sick child and they were not protected by the Family and Medical Leave Act. This was legal, even though I believe it was morally wrong. This article briefly explains why there is no such thing as wrongful termination and also explains the ways your job is protected.
II. EMPLOYMENT AT WILL- The first thing you need to understand is the “Employment at Will” doctrine. Employment at will means that you work at the “will” of you employer and you may be terminated at any time, unless the law prevents the employer from terminating your employment for some reason. This is the default provision in most states in the United States, and it certainly is the law in New York State.
So what does it mean to be an “at-will employee”? It means that your boss dictates the terms of employment and you can either take it or leave it. Why people choose to work under these conditions is beyond me. As an employee at will your employer can pretty much fire you because they do not like your attitude or because you made a simple mistake. You have no recourse under the law.
III. HOW DOES THE LAW PROVIDE YOU WITH JOB SECURITY? There are a few ways your job is protected:
- Join a union– The number one way to protect your job is to be a union member. You have to understand that the employment relationship is a contractual relationship. Generally, when you have the protection of a union contract, you can only be terminated for “just cause” which means that your employer has to prove that you committed a serious workplace infraction and followed progressive discipline (progressive discipline means that the employer did not just terminate you on the first offense, unless a very serious offense occured). Most every union contract requires that the employer prove in court or arbitration that it had proper grounds to fire you. This can include anything from poor work performance to fighting on the job.
Nearly every person would answer yes if you asked them if they would rather have an employment contract protect them at work instead of having no contract at all. However, if you ask them if they want to join a union, they have second thoughts. This is mainly because they do not understand unions. All a union does is provide you with a contract and enforce it for you, but it has to cover a group of workers instead of an individual worker. That is why it is called a collective bargaining agreement, because it is an agreement that was collectively bargained as opposed to an individual employment contract.
THE BOTTOM LINE IS THAT IF YOU WANT JOB PROTECTION, JOIN A UNION!!
- Discrimination– Another form of job protection are the discrimination laws. Employers are prevented by law from taking any adverse action against their employees if motivated by discriminatory intent. For example, your boss cannot fire you because you are a woman (gender discrimination), because you are African American (race discrimination), or because you have a disability (disability discrimination). However, many times proving intent is difficult. If your employer can show it had legitimate grounds to fire you, even if you feel the grounds are not sufficient to fire you, your employer will most likely defeat a discrimination claim. So remember, you are only protected when the employer acts with discriminatory intent.
- The Family and Medical Leave Act– If you work for a company that employs 50 or more employees then you are probably protected by the Family and Medical Leave Act (I say probably because there is more to it than just working for a company with 50 or more employees). Your employer cannot terminate you if you need leave to care for yourself if you are seriously ill or a family member that is seriously ill. You are entitled to 12 weeks unpaid leave each year. If your employer retaliates against you for using the leave or fires you before the 12 weeks has been utilized, they most likely violated the law.
- Retaliation– Your employer cannot fire you for engaging in protected legal activity. This means forming a Union, complaining about discrimination, or complaining about unpaid wages or overtime.
IV. CONCLUSION- In Westchester New York, many residents in Yonkers, Mount Vernon, New Rochelle and the surrounding areas such as the Bronx, are terminated unjustly. The law does not recognize a lawsuit for wrongful termination, but that does not mean you were not terminated wrongfully. One of my greatest pleasures as the Chief Officer of I.B.E.W Local Union 1430 and as a labor and employment attorney in Westchester New York, is protecting employees’ jobs and getting an employee their job back when they were fired without proper cause. It happens all the time.
However, one of the most upsetting things to see is how many people do not have the protection of a good union and those people not doing anything to take control of their professional life. If you are really interested in securing your job, then call El-Hag & Associates, P.C today and we can help you gain the protection you need. If you feel you have been wrongfully terminated, then call us, hopefully we can find proper grounds to get you your job back.
To learn more about your rights under the wage and overtime laws, disability law, or family & medical leave law, visit:
El-Hag & Associates, P.C 777 Westchester Ave, Suite 101, White Plains, New York, 10604.
Http://www.Elhaglaw.com • [email protected] • (914) 218-6190 (office) • (914) 206 -4176 (fax)
** Disclaimer- This blog post is applicable to employees working in NY State. Some of the information is applicable outside of NY State, but you should check the laws of the state in which you work. Additionally, this information is not intended as legal advice. If you have legal questions CALL OUR OFFICE. We do not want you to take any action relying on this information without being fully informed. You need to make sure that your circumstances protect you under the law before you act.