Fired from your job?
A. My employer fired me for a bad reason, or for no reason at all. Is that legal?
Probably. In New York State, a private-sector employer is not required to have a good, or any, reason to fire someone. It can do so for reasons most people might consider unfair, for example, to replace you with a member of the boss’ family, or for fighting even if the other worker wasn't fired, or because your boss didn't like you, or because your flight was cancelled and you had to extend your vacation. Public-sector employees (those who work for the government) may have more legal protection.
There are two basic types of circumstance, however, in which you might have legal recourse if fired unfairly:
1. If you work under a contract which says that you can only be fired for cause.
Almost all union contracts say this, so if you are employed under a union contract, you probably have protections in that contract, including seniority protection and a grievance procedure. There may be a very short deadline for filing grievances, so consult your union representative as soon as possible. If your union is unresponsive you can contact a private attorney, or the National Labor Relations Board at 866-667-6572 or http://www.nlrb.gov.
Besides union contracts, some workers have individual written contracts which limit the employer’s right to fire them. If you have a contract, check its terms and consult your attorney as soon as possible if you think your discharge is a contract violation. Most employee manuals or handbooks do not give employees legally binding protections against unfair firing, but it is also worth checking any employee manual or handbook just in case.
2. Various laws prohibit firing or discriminating against workers for certain specific reasons – the employer could fire someone for no reason, but is not allowed to do so for a prohibited reason. Some important examples (there are also others) include:
* Race, sex and the other types of discrimination prohibited by the Human Rights Law (see Section IV above)
* New York Labor Law section 215 forbids employers to fire or discriminate against employees for complaining about a Labor Law violation, either to the employer or to the Department of Labor. Federal law has a similar provision. If you believe you were fired or discriminated against for this reason, contact the New York State Department of Labor at (800) 662-1220 or http://www.labor.ny.gov, or the U.S. Department of Labor at 1-866-4-USWAGE or http://www.dol.gov.
* New York employers are forbidden to fire workers for “whistleblowing,” but only in very narrow circumstances. Under New York Labor Law section 740, a "whistleblower" is someone who reports or refuses to participate in a violation of law that causes a substantial and specific danger to public health and safety. To invoke the law, the worker must also have given the employer a reasonable opportunity to correct its practice by bringing it to a supervisor’s attention before going to a public agency. If you think you were fired for whistleblowing within the meaning of the law, you should consult an attorney to determine whether legal action is appropriate. NY Labor Law sec. 740
* In most instances it is illegal for an employer to fire or discriminate against you for participation, on your own time, in lawful political or recreational activities. NY Labor Law sec. 201-d. If you believe you have been discharged because of your involvement in such legitimate pursuits, you should consult your attorney, the NY Department of Labor at (800) 662-1220 or visit: http://www.labor.ny.gov , or contact the U.S. Department of Labor at 1-866-4-USWAGE or visit http://www.dol.gov.
* The Workers' Compensation Law prohibits an employer from discharging or discriminating against someone for filing a Workers' Compensation or Disability Benefits claim or testifying before the Workers' Compensation Board. NY Workers Comp Law sec. 10-35 Complaints of such retaliatory discharge may be made to the Workers' Compensation Board at (800) 877-1373 or http://www.wcb.ny.gov/.
* The National Labor Relations Act prohibits an employer from discharging or discriminating against a worker for joining a union. If you believe the employer has violated this law, contact the National Labor Relations Board (NLRB) at 866-667-6572 or http://www.nlrb.gov.
* Although the law does not guarantee you sick days, it may provide some other protections. For example:
** Federal law prohibits an employer from discharging or discriminating against a worker for using rights (e.g., filing a claim) under an employee benefit plan, if the employer has one. 29 U.S.C. sec 1140. For more information, contact the U.S. Employee Benefits Security Administration at (866) 444-EBSA or visit http://www.dol.gov/ebsa/aboutebsa/main.html
** Federal law also guarantees many workers unpaid time off if they request it because they are sick (see Part II above), and forbids employers to discharge or discriminate against workers for using their rights. For more information, contact the U.S. Department of Labor at (866) 487-9242 or http://www.dol.gov/dol/topic/benefits-leave/fmla.htm.
** Some workers fired for being out sick too much may have protection under laws against discrimination based on disability, including the federal Americans with Disabilities Act and New York State Human Rights Law. For information about those laws, consult a private attorney, or the New York State Division of Human Rights (1-718-741-8400 or http://www.dhr.ny.gov/index.html), the New York Attorney General’s Civil Rights Bureau (1-212-416-8250 ), or (for the Americans with Disabilities Act) the Equal Employment Opportunity Commission (1-800-669-4000 or http://www.eeoc.gov.
B. Can I be fired for serving Jury Duty?
No. An employer notified in advance of a jury duty summons may not fire an employee because of that absence. Workers who are fired because they missed work to fulfill a jury duty obligation should contact the Attorney General, Labor Bureau at (212) 416-8700 or complete the attached complaint form. (link to complaint form)
C. When must the employer pay me if my job ends?
A terminated employee is entitled to have any outstanding wages paid to him or her no later than the next regular pay day. The employee is also entitled to request that the wages be sent via the mail. NY Labor Law sec. 191(3).