For most industries, New York is an employment-at-will state. For the most part, an employer may terminate any employee for any legal, lawful reason.
The trouble comes when an employee alleges that they were fired for reasons that were neither legal nor lawful. These would include being fired for discriminatory reasons, in retaliation for complaining about harassment or discrimination, or engaging in union activities. It is also possible to terminate an employee in violation of a mutually agreed upon employment contract, or in retaliation for being a whistleblower about violations of laws or regulations impacting your business. Firing an employee for speaking up to request stronger safety standards may also be incredibly shaky ground.
These laws are anything but simple. It is possible to fire an employee believing that you were 100% on the right side of the law only to be blindsided by the realization that the employee can make a decent case for a wrongful termination suit.
Employees who are successful in pursuing a wrongful termination suit may sue for lost wages, lost benefits, emotional distress, and punitive damages.
Be ready with documentation.
Documentation is the most potent weapon you have against a wrongful termination suit. Ideally, you would have been engaged in the documentation process throughout the employee’s time at the company.
Documentation includes both the notes you would put in the employee’s file and things like your policies and procedures as documented in the employee handbook. So, too, does your written just cause and progressive discipline policy.
Evaluations, disciplinary write-ups, performance improvement plans, and even the employee’s signature on the handbook stating they have agreed to follow company policy can all serve as evidence as to reasons why the employee might have been fired that would have been rightful, legal, and defensible.
Resist the urge to talk about the case.
Certain wrongful termination cases can become incredibly high-profile, especially if it looks like you as the employer acted in a fashion that was unreasonable or unfair. These suits can become public relations issues.
It may be very tempting to defend yourself in the court of public opinion, but be careful. Anything you say can be used against you when the litigation begins.
Consult with a business attorney who can help.
The sooner you involve an attorney, the better. You will need to create the strongest possible defense to lower a potential settlement or to make your attempts to defend yourself in court successful.
See also:
7 Legal Mistakes New Business Owners Make
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Meet Mr. Richman
SCOTT B. RICHMAN, ESQ.
Mr. Richman is the Managing Member and Founder of Richman Law Firm PLLC. In his role as Managing Member, Mr. Richman oversees the day-to-day operations of the firm and handles the litigation of the most complex legal matters across a vast array of practice areas and disciplines.
