Unlawful Firing: When Can (and Cannot) Employees Seek Compensation

What Is Wrongful Termination?

Wrongful termination occurs when an employer fires an employee for an illegal reason. Specific New York state and federal statutes outlaw employees’ termination for various reasons. Case law and public policy also identify various circumstances under which an employer’s termination of a worker may be unlawful. 

When an employer wrongfully terminates an employee, that employee can pursue claims to obtain legal relief or compensation from a government agency or the courts. For example, an employee may report a wrongful termination to the U.S. Equal Employment Opportunity Commission (EEOC) or the New York State Division of Human Rights, which can investigate the employee’s claims and institute corrective action. This may entail imposing fines on the employer or requiring them to adopt new workplace policies to prevent similar future wrongful terminations.

Wrongfully terminated workers can also file lawsuits against their former employers to pursue equitable relief and financial compensation for losses arising from their termination. Examples of relief that a court may order in a wrongful termination lawsuit include:

• An injunction requiring the employer to reinstate the wrongfully terminated worker to their former position
• Compensation for back pay between the time of the worker’s wrongful termination and reinstatement to their former position or their starting a new position that paid an equal or higher salary
• Compensation for front pay for the time the worker spends out of work while looking for new employment
• Compensation for replacement costs for lost job benefits, such as health insurance
• Reimbursement for reasonable job search expenses incurred by the worker to find a new job
• Compensation for emotional trauma or distress caused by workplace discrimination or harassment and the worker’s eventual termination 

An experienced wrongful termination attorney can help you determine whether you’ve become the victim of an unlawful termination and the financial and personal losses for which you may have the right to seek compensation.  

When Does Wrongful Termination Occur?

Under state and federal labor, disability, employment, and contract laws, a worker’s firing under various circumstances can constitute a wrongful termination. Examples of when a wrongful termination may occur include:

• Discrimination – An employer is prohibited from terminating a worker for discriminatory reasons, such as when they decide to fire someone based on their protected characteristic(s). 
• In Violation of State or Federal Laws – Various labor laws expressly prohibit termination of employees under specific circumstances. For example, when an employee takes leave protected by the federal Family and Medical Leave Act (FMLA), the employer must keep a position available for them to return to at the end of their leave and cannot terminate them. State and federal laws also prohibit retaliatory discharge of employees who exercise their statutory rights, such as the right to request disability accommodations or workers’ compensation benefits.
• Retaliatory Discharge – An employer may break the law when it fires a worker to retaliate against them for exercising their rights under state and federal labor laws or for advocating for the rights of co-workers. 
• Reporting Workplace Discrimination, Harassment, or a Hostile Work Environment – Just as employers cannot terminate workers for harassing or discriminatory reasons, they cannot fire workers who complain about the discriminatory or harassing treatment of their co-workers, even if the complaining employee does not share the same protected characteristic as the worker targeted for discrimination or harassment. 
• Reporting or Refusing to Participate in Illegal or Unethical Conduct – Employers cannot fire an employee who refuses to perform or participate in conduct the employee reasonably believes violates the law, industry regulations, or formal ethical rules. Employers also cannot terminate workers who lodge complaints about the company engaging in such illegal or unethical conduct. 

Unfortunately, because employers can offer seemingly legitimate-sounding reasons for terminating an employee, a worker may not realize they’ve become the victim of a wrongful termination until they’ve had time to reflect on the events leading to their firing. At this point, it may be too late to pursue accountability from a former employer.

If your employer fires you under any of the above circumstances or other circumstances that suggest an ulterior motive, talk to an experienced wrongful termination attorney. After discussing the events surrounding your termination, they’ll determine whether your employer may have fired you for an improper reason.

Is There a Statute of Limitations?

Depending on which statutes a terminated employee seeks relief under, different deadlines apply for filing a wrongful termination claim against a former employer. For most discrimination claims, workers typically have 180 or 300 days after a wrongful termination to file a charge of discrimination with the EEOC for a violation of federal discrimination laws. For violations of the New York Human Rights Law, they typically have one year to file a charge with the New York State Division of Human Rights (or three years for sexual harassment or discrimination).

After submitting a charge of discrimination with the EEOC, the agency will investigate the worker’s claims. If the agency chooses not to pursue the claims, it will issue the worker a “right-to-sue” letter, which gives the worker 90 days to file a wrongful termination lawsuit. Workers also have three years to file lawsuits under New York law. Terminated employees also have two years to file a lawsuit claiming termination on the basis of whistleblower retaliation.  Finally, employees have two years to file a lawsuit alleging retaliatory discharge for exercising their FMLA rights.

Because different deadlines apply to various wrongful termination claims, you can best protect your rights and options by speaking with a wrongful termination attorney as soon as possible after your firing. They will determine whether you may have a valid legal claim against your former employer and what filing deadlines may apply to your claim. An attorney can help you file your claims on time. Failure to file on time may result in losing the opportunity to hold your employer accountable for the financial, emotional, and reputational loss you’ve endured due to a wrongful termination.

Examples of Unlawful Firings in NYC

Employers may wrongfully terminate employees for various illegal or nefarious reasons. Unfortunately, employers frequently try to cover up their unlawful conduct by offering seemingly legitimate reasons for a worker’s firing, such as poor performance or disciplinary infractions like tardiness or insubordination.

However, these reasons, even though they may have an appearance of legitimacy, merely serve as a pretext to fire an employee for an impermissible purpose. Employers may even create a paper trail in the weeks or months before a worker’s termination, such as disciplinary warnings or performance improvement plans, to justify firing the employee. For this reason, fired workers need experienced legal counsel to help them uncover the evidence that can allow a jury to infer an employer’s wrongful motive for terminating them. 

Examples of scenarios that may constitute a wrongful termination in New York City include employment discrimination, retaliation, pregnancy, filing a workers’ compensation claim, reporting a whistleblower complaint, and reporting a hazardous work condition.

Employment Discrimination

Employers are prohibited from terminating an employee because they have a specific characteristic protected by federal or state law. For example, Title VII of the Civil Rights Act of 1964 prohibits employers from firing workers based on an employee’s:

• Race
• Color
• National origin
• Religious beliefs
• Sex (including pregnancy, gender, and sexual orientation)

Employers also terminate workers for a discriminatory purpose when they do so because of an employee’s association with a person with a protected characteristic (such as terminating a worker due to their spouse’s race or national origin). Evidence of terminations based on an employee’s protected characteristic may include discriminatory or harassing comments or behavior by supervisors or co-workers preceding the termination or “coded language” used when justifying the worker’s firing.

The Americans with Disabilities Act (ADA) generally prohibits terminating employees with a disability, as defined by the ADA, or employees whom an employer perceives as disabled. Employers first must engage in the “interactive process” to determine whether they can provide the employee with reasonable accommodations that enable them to perform the essential functions of their job despite their disability. Failing to engage in the interactive process constitutes a violation of the ADA and opens an employer up to legal action if they unlawfully fire a disabled worker.  

The Age Discrimination in Employment Act prohibits the termination of workers aged 40 and older on the basis of age. Wrongful termination of older workers can also include forcing workers to retire or hiring younger workers and shifting an older worker’s duties to those younger workers. Evidence of age-based wrongful termination frequently involves efforts to move work responsibilities off an older worker’s plate, criticisms of the worker’s ability to use technology or follow new processes, repeated questions about the worker’s retirement plans, or use of “coded language” along the lines of wanting “new blood” or “fresh ideas” that signals an employer’s preference for younger workers. 

Other laws prohibit firing workers for other protected characteristics, such as military service or veteran status, gender identity, and genetic information. 

Retaliation

Wrongful termination may also occur when an employer fires a worker in retaliation for exercising their rights under state or federal labor laws, such as New York workers’ compensation laws, the FMLA, the ADA, the National Labor Relations Act, or various whistleblower statutes. Common examples of retaliatory discharge include:

• Firing a worker who requests disability accommodations
• Firing a worker who requests protected leave, such as unpaid leave afforded by the FMLA
• Firing a worker who files complaints about discriminatory or harassing treatment they experience at work
• Firing a worker who files complaints about discriminatory or harassing treatment against co-workers
• Firing a worker who files complaints about corporate activities they reasonably perceive as illegal or unethical conduct
• Firing a worker who refuses to perform or participate in activities they perceive as illegal or unethical
• Firing a worker who participates in an official investigation or proceeding, such as a federal or state labor agency investigation into allegations of workplace discrimination or harassment, regulatory or law enforcement investigations into company wrongdoing, or workers’ compensation claims
• Firing a worker who requests leave to perform National Guard, Reserve, or active-duty military service
• Firing a worker who advocates for and pursues unionization of the employer’s workforce or other collective bargaining activities

In many cases, evidence of a retaliatory discharge takes the form of temporal proximity between the worker’s protected activity and their termination. For example, when a worker engages in protected activity and their employer terminates them (often suddenly) within weeks, that proximity may suggest a retaliatory motive. 

Pregnancy

Employers are prohibited from terminating female employees who become pregnant or who recently have had children under Title VII or state labor laws. Examples of wrongful terminations of employees for pregnancy-related reasons include:

• Terminating an employee after they became pregnant
• Terminating an employee for requesting or taking FMLA-protected leave to seek medical care during pregnancy
• Terminating an employee for requesting or taking FMLA-protected parental leave (including male workers who take protected leave after the birth of a child)
• Terminating a worker who requests accommodations during pregnancy, such as restrictions on physical duties, modified work hours, or more frequent breaks
• Terminating a worker who requests post-pregnancy accommodations, such as a private, secure room (outside of the restroom) to pump breast milk

Currently or recently pregnant workers who get fired under one of the above circumstances or other suspicious circumstances should speak to a wrongful termination attorney to determine whether their employer may have unlawfully terminated them.

Filing a Workers’ Compensation Claim

Although employers generally can fire workers who receive workers’ compensation benefits, they cannot retaliate against workers who file workers’ compensation claims. Workers’ compensation retaliation occurs when an employer terminates a worker because they requested or received workers’ compensation benefits. Employers might terminate workers who file for workers’ comp under the mistaken belief that it will relieve the company from paying for workers’ compensation benefits. However, employers remain liable for providing workers’ compensation to an injured employee even after terminating their employment. 

Employers also violate disability discrimination laws when they wrongfully terminate employees on workers’ compensation. An employer may fire an injured or disabled worker if they cannot perform their job duties – workers’ compensation laws do not require employers to hold positions open for employees out on workers’ comp. However, a worker whose injury renders them disabled or perceived as disabled by their employer can request that the employer provide reasonable accommodation to enable them to perform the essential functions of their job. An employer unlawfully terminates a worker by firing them after refusing to discuss reasonable accommodations that would allow the worker to return to work within their medical restrictions.

Reporting a Whistleblower Complaint

Employees have the right to file internal whistleblower complaints to an employer’s human resources or internal affairs department. They may also report an employer to state and federal authorities for suspected illegal or unethical conduct. Common examples of whistleblower complaints include:

• Reports of discriminatory or harassing behavior by co-workers, supervisors, or managers
• Reports of violations of labor laws, such as workers’ compensation, FMLA, or wage-and-hour laws
• Allegations of violations of state and federal securities laws, such as insider trading, Ponzi schemes, or making false or misleading public disclosures
• Allegations of violations of environmental laws, such as failure to conduct remediation or unauthorized discharges of hazardous waste
• Allegations of criminal or racketeering activity, such as Medicare or Medicaid fraud, insurance fraud, and mail or wire fraud
• Allegations of violations of consumer protection laws, including inadequate cybersecurity protection or willful breaches of warranties 
• Allegations of ethical violations, such as rules of professional conduct governing lawyers, health care providers, realtors, and brokers or financial advisors
• Allegations of violations of federal, state, or industry product safety regulations

An employer cannot legally terminate a worker in retaliation for filing a whistleblower complaint. They also can’t terminate employees in retaliation for participating in whistleblower proceedings, such as by providing cooperation or testimony to regulatory or law enforcement agencies or in court.

Reporting a Hazardous Work Condition

Employee whistleblowing activity can also extend to reporting hazardous workplace conditions. The federal Occupational Safety and Health Administration (OSHA) and the New York Division of Safety and Health oversee workplace safety conditions in New York City. Many industries also have organizations that issue or enforce workplace safety regulations.

Workers can report employers for failing to maintain safe working conditions or repair hazardous work conditions, such as:

• Defective or malfunctioning tools, equipment, or machinery
• Improper storage of flammable or toxic materials or substances
• Lack of fall protection
• Inadequate personal protective equipment

Workers may also report employers for not creating or implementing workplace safety plans or protocols. 

An employer cannot terminate a worker in retaliation for their decision to report hazardous work conditions to government or industry regulators or for their participation in safety investigations, such as allowing investigators into the worksite or providing testimony during regulatory or legal proceedings.

Examples of Lawful Firings in NYC

In some circumstances, employers can lawfully terminate employees even when their reasons for doing so arise from a mistaken but good faith belief in a legitimate basis for the worker’s termination. Examples of potentially erroneous firings that still constitute a lawful termination include wrongful accusations of theft, negative comments in the worker’s personnel file, and a worker’s refusal to take a pay cut or reduction in hours.

Employer Wrongly Accuses You of Stealing

Employers can lawfully terminate employees who engage in theft or other misconduct. However, in some cases, an employer may erroneously conclude that a specific employee has engaged in misconduct and terminate that employee, only for evidence and facts to later exonerate that employee.

Unfortunately, even if the evidence ultimately vindicates you from misconduct accusations, you may not have a wrongful termination claim against your employer. An erroneous accusation of workplace misconduct may support a wrongful termination claim only if you can show that your employer subjectively did not believe in the veracity of the allegations or knowingly disregarded information or evidence that exonerated you. 

Personal Work File Contains Damning Sentiments

An employer may lawfully terminate an employee based on write-ups or other negative comments in their personnel file. Depending on the workplace, these negative write-ups can come from supervisors, co-workers, or even customers.

Unfortunately, people may place negative comments in an employee’s personnel file for various reasons, some less than legitimate. For example, a supervisor may place adverse performance reviews in an employee’s file to harass, retaliate against, or discriminate against the employee. Co-workers may lodge complaints against an employee due to personal animosity or discriminatory bias. Finally, customers may lodge complaints against employees for perceived slights or because the customer has exaggerated a negative encounter due to their emotions or mood. 

However, these negative marks in an employee’s personnel file can lead to an employer terminating their employment, especially when the employer fails to investigate these negative marks adequately. Although adverse complaints and reviews in an employee’s personnel file may have an ulterior motive or another side to the story, an employer can rely on a worker’s personnel file in good faith to determine whether to retain the worker. 

When You Refuse to Have Your Salary Lowered or Hours Changed

Having an employer ask you to take a salary or hours cut is one of the most frustrating, deflating experiences any employee can endure. The loss of income can put significant financial pressure on you and your family, leading you to resist your employer’s requests to cut back your wages or hours. However, unless your employment contract or a union collective bargaining agreement stipulates your pay or working hours, your employer has the right to reduce your work hours and terminate you if you refuse to accept a reduced role. 

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

After a termination that you believe violates federal or state laws or public policy, you can take action to protect your interests and put yourself in a favorable position to seek accountability and justice from your employer. This requires gaining a full understanding of what you believe happened, gathering paperwork and evidence related to your termination, and contacting an experienced New York employment law attorney.

Ask Yourself These Questions First

The first step you should take after getting fired is to ask yourself questions about the circumstances leading to your termination. This can help you determine whether your employer may have fired you for an illegal reason. Questions you should ask yourself include:

• Did you experience discriminatory conduct from your supervisors (e.g., exclusion from meetings, events, etc., based on a protected characteristic)?
• Did your supervisors or co-workers make any discriminatory or offensive remarks about your race, color, national origin, religious beliefs, sex, gender, gender identity, gender expression, sexual orientation, age, disability, or pregnancy?
• Did your employer make comments during your termination that suggested an ulterior motive, such as “This isn’t the place for someone like you,” “We’re looking for ‘fresh ideas,’” “You seem to have trouble performing your job duties,” or “We need someone more available after your injury/health emergency/pregnancy/etc.”?
• Did you feel pressured to resign due to your co-workers’ or supervisors’ behavior or a hostile work environment?
• Did your employer pressure you to retire due to your age?
• Did your employer terminate you within a matter of weeks after you filed a workers’ compensation claim, request for leave, whistleblower complaint, or complaint about workplace discrimination or a hostile work environment?

Paperwork

Next, you should begin gathering all paperwork related to your termination. Examples of documents you might need include:

• A copy of your employment agreement or employee handbook
• Copies of your performance reviews
• Copies of any performance improvement plans
• Copies of any disciplinary records, such as written warnings or demerits
• A copy of your termination letter and other related documentation, such as WARN Act notices
• Copies of any documents your employer provided to you or asked you to sign

When paperwork for your termination provides vague or inconsistent reasons for your firing, that might suggest that your employer had an unlawful motive for firing you. 

Evidence

You should also gather other evidence suggesting or demonstrating that your employer terminated you for an unlawful purpose, such as:

• Copies of all email correspondence, voicemails, and text messages with co-workers and supervisors
• Contemporaneous documentation you made of any offensive or discriminatory remarks or actions made by co-workers or supervisors
• Copies of any complaints you submitted to your supervisor or human resources
• Statements or written testimony from colleagues about harassing or discriminatory behavior they witnessed
• Contemporaneous records you kept to document discriminatory employment decisions, such as hiring, firing, promotion, and job assignment decisions

Much of the evidence you might use to support your wrongful termination claim may reside in your former employer’s files or computer servers. As a result, you may need experienced legal counsel to help you file a wrongful termination claim to recover that evidence through formal legal processes, such as the discovery process in a wrongful termination lawsuit. 

Legal Advice

Finally, talk to a wrongful termination attorney as soon as possible to discuss your situation and the documents and evidence you’ve gathered to determine whether you have a solid claim to prove that your employer fired you for an unlawful reason. Depending on the improper reasons for your termination, you may have only a few months to file a claim to begin pursuing legal or financial relief.

Contacting a lawyer immediately after a wrongful termination can help you recover evidence before it gets lost, deleted, or covered up or before witnesses’ memories fade with time. An attorney can help you further investigate your claims, recover the evidence you need to develop a solid case, and explore your options for pursuing legal and financial relief for the losses you’ve suffered due to your firing. A wrongful termination lawyer can also help you navigate the claims process, including pursuing administrative claims with federal and state regulators or filing lawsuits in court.

Contact Our NYC Wrongful Termination Lawyers

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Federal, state, and local laws make it illegal for New York City employers to fire workers for improper reasons, such as discrimination, retaliation, or after a worker has “blown the whistle” on an employer’s improper conduct. Fortunately, the law gives wrongfully terminated workers the right to seek legal and financial relief from their employers.

When you believe your employer has unlawfully terminated you, you may have a claim for relief that can include reinstatement to your position or compensation for your lost wages and other financial and personal losses. Contact Lipsky Lowe LLP today for a confidential consultation with an experienced wrongful termination attorney to discuss your rights and options for pursuing financial relief and justice.