Involuntary Terminations: New York
Federal law and guidance on this subject should be reviewed together with this section.
Author: Jessica Sussman
- New York employers are required to provide written notice to any employees terminated from employment, and the notice must provide specific information and should be received by the employee within a specific time frame. See Termination Notification in New York.
- New York employees may be terminated for cause when the traditional at-will employment relationship has been modified by agreement, policy or contract. See Termination for Cause.
- The New York State Human Rights Law provides additional protections for employees who are subject to discrimination in the workplace. See The New York Human Rights Law.
- The New York State Worker Adjustment and Retraining Notification Act (NYWARN) (NYWARN Act) enhances the protections afforded to employees by federal legislation. See The NYWARN Act.
- The New York Military leave Law requires an employer to reinstate an employee on military leave, unless employer changes make it impossible or unreasonable. See The New York Military Leave Law.
- New York City has requirements pertaining to retention of grocery workers and discrimination prohibitions. See Local Requirements.
All New York employers are required to notify terminated employees - in writing - of the exact date of a termination, as well as the exact date of the cancellation of any employee benefits deriving from employment. The terminated employee must receive the written notice within five working days after the date of the termination. Failure to notify the terminated employee within this time frame may expose the employer to penalties. +NY CLS Labor § 195.
Termination for Cause
In assessing whether an employee is retained at-will or by some contractual relationship, courts in New York will conduct a four-pronged analysis:
- Whether the employee gave up anything of value, like another job, pursuant to an understanding that he or she would not be fired by the employer without just cause;
- Whether the employee's understanding is based on something concrete like a written provision in an employee handbook or policy manual;
- Whether the employee actually relied on the provisions contained in a handbook or policy manual to his or her detriment; and
- Whether the employer's common practices demanded compliance with the just cause termination provision.
Thus, an employee who is able to successfully argue the existence of a binding employment contract, either written or implied as above, would be protected by the just cause requirement.
New York does not have its own standard for assessing whether an employer had just cause to substantiate an employment decision. However, employers should generally ensure that they have adequate proof of misconduct, that they have properly notified employees of fair and reasonable workplace rules and procedures, that they enforce rules or policies fairly and consistently among all employees and that they utilize a system of progressive discipline whenever possible.
The New York Human Rights Law
The New York State Human Rights Law (NYSHRL), +NY CLS Exec § 291, applies to all public and private employers in New York with four or more employees, including licensing and employment agencies and labor organizations.
The NYSHRL bars discrimination in employment based on age, race, creed, color, national origin, sexual orientation, military status, sex, disability (including registered certified medical marijuana users), predisposing genetic characteristics, marital status, domestic violence victim status, familial status and gender identity or expression. See +NY CLS Exec § 296; +2019 Bill Text NY S.B. 1047, amending Subdivisions 1 and 2 of Section 291 of the Executive Law, as amended by Chapter 196 of the Laws of 2010; EEO - Discrimination: New York.
The term gender identity or expression means a person's actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender. +2019 Bill Text NY S.B. 1047, adding Subdivision 35 to Section 292 of the Executive Law; see EEO - Discrimination: New York. (Regulations had been issued addressing gender identity discrimination protections at the state level prior to the 2019 NYSHRL amendments.)
Additionally, the definition of disability under NYSHRL is broader than that used in the Americas with Disabilities Act. Pursuant to the NYSHRL, a handicap or disability includes:
- Physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevent the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques;
- A record of such impairment; or
- A condition regarded by others as impairment.
To be protected by the NYSHRL, individuals only have to show that they have a medical impairment, a record of impairment, or that they are perceived as impaired by others; they do not have to prove the impairment substantially limits one or more of their major life activities. The NYSHRL does not cover individuals with current, illegal drug use habits. Employers do not need to provide reasonable accommodations to employees who use illegal drugs.
Employers in New York may be liable for acts of discrimination against employees in the above noted categories based on discriminatory employment policies or practices.
Under the NYSHRL, it is unlawful for a supervisor to aid or abet acts of discrimination that are forbidden under the statute. +NY CLS Exec § 296(6). Therefore, a corporate supervisor or manager may be subject to personal liability under the NYSHRL where the supervisor or manager has been deemed equivalent to an employer within the meaning of the NYSHRL.
New York courts have found a corporate manger or supervisor is not considered an employer pursuant to NYSHRL unless:
- The individual has an ownership interest in the corporation; or
- The individual has the power to do more than simply carry out personnel decisions made by others. Patrowich v. Chemical Bank, +63 N.Y.2d 541 (1984).
For a supervisor to be liable as aiding or abetting a NYSHRL violation pursuant to § 296(6), the employee must establish that
- The supervisor engaged in conduct protected by the NYSHRL;
- There was a causal connection between the protected conduct and the alleged violations of the NYSHRL; and
- That the supervisor actually participated in the discrimination. Beattie v. Guilderland Cent. Sch. Dist., +124 F.Supp.2d 802 (N.D.N.Y. 2000).
Procedure and Relief
An employee harmed by a violation of the NYSHRL can obtain relief by filing a complaint with the New York State Division of Human Rights, or a lawsuit in state or federal court. The available relief includes injunctive relief, compensatory damages, and attorneys' fees. Aggrieved employees are not entitled to punitive damages under NYSHRL.
Statute of Limitations
Aggrieved employees have three years to bring a claim of discrimination under NYSHRL.
New York City has its own human rights law, which provides additional protections to employees. See Local Requirements.
The NYWARN Act
The New York State Worker Adjustment and Retraining Notification Act (NYWARN Act) applies to private employers with 50 or more employees (excluding part-time employees) or 50 or more employees (including part-time employees) who, in the aggregate, work at least 2,000 hours per a week. The Act requires 90 days' advance written notice of mass layoffs, plant closings or relocations. +NY CLS Labor §§ 860 et seq.
In contrast, the Federal WARN Act requires employers with 100 or more full-time employees to provide at least sixty (60) days notice of a mass layoff or plant closing. Thus, the NYWARN Act covers more employers than are required to comply with federal law, and it obligates covered employers to provide notice further in advance than the federal WARN Act.
Furthermore, smaller-scale employment losses will trigger coverage under NY WARN. Pursuant to New York law, a mass layoff occurs when either 250 employees or at least 33% of the workforce totaling 25 or more employees lose their employment at a single site during any 30 day period but not as a result of plant closing.
A plant closing occurs under NYWARN when a permanent or temporary shutdown of a single employment site results in an employment loss of 25 or more employees, not including part-time employees. Notably, this is half the employment loss required to trigger coverage under the federal law.
Importantly, relocation in this context is the removal of substantially all of the employer's individual or commercial operations to another location at least 50 miles away. Unlike the federal WARN Act, NYWARN requires a covered employer to provide notice of a relocation, whether or not there are any associated employment losses.
Pursuant to NYWARN, an employment loss is a termination or permanent job elimination, a layoff exceeding six months, or a reduction in hours of more than 50% in each month of a six-month period. Voluntary resignations, retirements, discharges for cause and certain transfers do not quality as employment losses.
When the NYWARN Act is triggered, affected employees, their union representatives, the New York State Department of Labor and the local workforce investment board must receive advance written notice. Such notices must be provided at least 90 days before an employment loss occurs in connection with a triggering event.
Pursuant to the NYWARN Act, employment losses due to a physical calamity or an act of war are exempt from the enumerated notice requirements.
The NYWARN Act permits less than 90 days notice in the case of a faltering business or where the need for notice was not reasonably foreseeable at the time notice was required. Moreover, a shorter notice period will be permitted when a layoff that was originally intended to be shorter than six months is extended due to business circumstances that were not foreseeable at the initial layoff, as long as the employer provides notice as soon as it anticipates the layoff will exceed six months.
Penalties for Non-compliance
The penalties for noncompliance mirror that under the federal law. New York WARN generally allows for recovery of one day of lost wages and benefits for each day the employer fails to give notice up to a maximum of 60 days. The employer may also be subject to a civil penalty of $500 per day if it fails to pay employees required amounts within three weeks from the date the employer orders mass layoff, relocation or employment loss. In contrast to federal law, there is no excusal of minor or inadvertent errors in the notice or that occur as a result of changed circumstances during the notice period. An employer's liability may be reduced if it acted in good faith and had reasonable grounds to believe that it had complied with state requirements.
New York Military Leave Law
New York provides job and benefit protection for employees who take a leave of absence for military duty. The law provides for guaranteed reinstatement in the same or similar position unless the employer's circumstances make it impossible or unreasonable. Employees must apply for reinstatement after completion of service.
New York City Grocery Worker Retention
Effective May 8, 2016, the Grocery Worker Retention Act protects workers of certain grocery stores within the five boroughs from termination in the 90 days following a change of ownership like a merger or acquisition.
The law applies to "grocery" stores where the sale of food for off-site consumption comprises 50% of sales or more and where the size of the store exceeds 10,000 square feet.
All covered employers who are successors in a restructure like a change of ownership, merger or acquisition are required to notify existing employees of their rights. They then must retain the existing workers of the store for a period of 90 days following the restructure. Successor owners are permitted to terminate existing workers inside the 90 day period for "cause," though the legislation does not provide a definition for "cause."
After the 90 day period concludes, successor employers are required to author written performance evaluations for all existing employees and to keep records of those evaluations for a period of three years after the 90 day period ends. Once the written evaluation and 90 day waiting period have been satisfied, successor employers may elect to retain existing workers, but they are not required to.
Excluded from the 90 day waiting period are successor employers who either agree to be bound by an existing Collective Bargaining Agreement (CBA) which would protect the relevant workers or successor employers who negotiate new CBAs to cover those workers as part of the restructure.
New York City Human Rights Law
New York City bans discrimination against job applicants on the basis of their job status, meaning that it is illegal in New York City to discriminate on the basis of unemployment. While other jurisdictions have similar legislation, New York City's ban against unemployment discrimination is the most comprehensive in the nation because it permits job applicants to sue potential employers directly for damages.
Additionally, employees who work in the five boroughs of New York City enjoy additional employment protections based on the New York City Human Rights Law (NYCHRL). +NYC Administrative Code 8-107.
The NYCHRL prohibits discrimination in employment, based on race, color, creed, age, national origin, alienage or citizenship status, gender (including gender identity, sexual orientation, disability, marital status, and domestic partnership status.
Effective May 20, 2019, amendments to the New York City Human Rights Law (NYCHRL) prohibit an employer from discriminating against an employee based on sexual and reproductive health decisions.
The term sexual and reproductive health decisions means any decision by an individual to receive services that are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions. Such services include, but are not limited to:
- Fertility-related medical procedures;
- Sexually transmitted disease prevention, testing and treatment; and
- Family planning services and counseling, such as those regarding birth control drugs and supplies, emergency contraception, sterilization procedures, pregnancy testing and abortion.
The NYCHRL also provides protection based on an employee's arrest or criminal conviction record and status as a victim of domestic violence, stalking or sex offenses. Finally, NYCHRL prohibits retaliation and bias-related harassment, including but not limited to cyber-bullying.
Public and private employers cannot discipline or take retaliatory action against employees who disclose, or threaten to disclose policies or practices that violate laws or regulations, or threaten public health or safety. Aggrieved employees can sue for reinstatement, back pay and benefits and may be entitled to attorney fees.
When employees make claims for unlawful discrimination under the New York City Human Rights Law (NYCHRL), they are not required to meet the federal standard of "severe or pervasive" discrimination in the workplace. Rather, employees must simply prove that they were treated "less well" than other employees based on a protected category. The "severe or pervasive" test will only apply to the measure of damages, not liability.
In Mihalik v. Credit Agricole Cheuvreux North America, Inc., +2013 U.S. App. LEXIS 8494 (2nd Cir. 2013), a federal court reversed a district court that had granted summary judgment to the employer on a claim of sexual discrimination under the NYCHRL. The court found that the while the employee may have failed to prove that the sexual discrimination against her was "severe or pervasive," that she did provide enough evidence to show that she had been treated "less well" than other employees based on her sex.
Specifically, the employee alleged that she had refused her manager's sexual advances and when she insinuated that her disciplinary treatment resulted from her refusal to engage in sex with her manager, she was terminated. The court found that the allegations were sufficient to advance a claim under the NYCHRL even though the alleged discrimination was not "pervasive" in the organization.
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