Navigating the Complexities of Wrongful Termination: What Lawyers Consider Under the Updated Rules in 2024

Types of Wrongful Termination in New York under the Updated Rules

New York and many U.S. states are at-will employment states. That means that unlike in some other countries, and unlike in some U.S. unionized factories or government agency workplaces, employees may be terminated without the employer necessarily showing good cause, immoral or unethical activity at work, or that an employee performed worse than other employees in the same company. This is where a reliable workplace discrimination and harassment attorney can help protect rights.

There are many instances in which firing a worker is illegal in New York. Employees may be able to sue their employer or have it investigated by a public agency. Examples include: tenured employees fired without adequate cause, employees terminated contrary to their contract or collective-bargaining agreement, employees terminated for discriminatory or retaliatory reasons relating to their race or ethnic background or being a woman or some other identity factor, employees terminated for speaking out and whistleblowing on illegal employer practices, and a few other categories.

Illegal Termination without Due Process

Tenure

There are tenure protections at some jobs, for examples professors at State University of New York or City University of New York departments, or teachers in public school districts. Tenure often is awarded after a probationary period, and protects teachers from arbitrary or retaliatory termination without due process. A fair hearing should be guaranteed, and often progressive discipline and the assistance of others. Teachers have the right to be assisted by wrongful termination lawyers or other legal representation under Education Law §3020-a. There is a Teacher Tenure Hearing Guide and a Teacher Tenure Hearing Unit associated with the of New York State Education Department’s Office of Higher Education/Office of School Personnel Review and Accountability.

Termination in an arbitrary way, without a wrongful termination lawyer NYC, or without a fair hearing may be in violation of due process and legal rights. Teachers and professors also have rights of academic freedom that may become part of their contract with their employer.

Contracts and Collective Bargaining

Police, fire, public defenders, legal aid attorneys, and certain public-sector employees are covered by collective-bargaining agreements. These agreements are contracts that grant additional rights in cases of layoff, dismissal, termination, reduction of hours, or nonrenewal of term. Some contracts or collective bargaining agreements state that certain employees may only be fired “for cause,” or in other words not arbitrarily or unfairly. Many union agreements have grievance procedures that limit the processes used to terminate union employees. For example, police officers may be more difficult to terminate after their probationary period ends, particular for less serious offenses against department policy.

Unlawful Reasons for Termination

Even in at-will employment states, employers are regulated as to how they terminated, lay off, fire, refuse to promote, and treat their employees. Firing or laying people off for prohibited reasons is governed by a mixture of federal, state, and local laws.

Terminating employees of a certain race, ethnic group, national origin, religion, or color on the basis of that identity characteristic, even if it is only one of two or three factors considered, can be illegal. The federal civil rights laws and state and local human rights laws and government laws provide for equal opportunity employment, and create a burden-shifting framework in cases of wrongful termination. Under the typical framework, an employee may be able to show that he or she was terminated when other employees were kept on against similar failings in their performance, or violations of employer policies. The burden then shifts to the employer to explain and prove legitimate nondiscriminatory reasons to justify a termination or dismissal, or other action like negative transfer of position or refusal to promote or pay equally. The employee then needs to raise factual questions about whether that reason was the true one, or merely a pretext or cover for illegal discrimination on the basis of identity.

A similar framework applies in cases of sex, sexual orientation, gender identity, marital status, familial status, military status, height and weight, hairstyle, disability accommodations, certain genetic characteristics, domestic violence victim status, favorably resolved arrest record, or pregnancy or lactation accommodations. Age discrimination is sometimes different, especially under federal law or state law, so that age of the employee must have been the main issue or consideration explaining the termination, while under New York City law, if age was one of several factors or issues legal to termination, which may be illegal.

Retaliation for reporting violations of labor law, public safety laws, workplace safety laws, public health laws, fraud against federal agencies or federal programs, or fraud against New York state agencies or programs where the state recovers funds due to the complaints of a whistleblower who got fired.  

Types of Legal Claims Involving Wrongful Termination

Reinstatement

Reinstatement is a legal procedure or remedy to get an employee’s job back. For example, under the New York State Human Rights Law, reinstatement to the job that one lost may be available.  Under the updated rules, workers have more time to seek reinstatement, and more domestic workers are covered than ever before, so that home health workers, housekeepers, nannies, and other caregivers are mostly covered.

Damages Including Lost Pay

Lost pay is a recognized claim in discrimination and wrongful termination cases. Giving someone there job back does not put them in the place they should have been in if their employer had not been acting illegally, unless the person is also given the wages and fringe benefits they lost, by a court. For example, former New York employees of Twitter (now X) may have filed hundreds of claims involving not being kept on for up to 90 days following the termination of a contract involving them, seeking the wages they would have earned.  Lost severance is another type of damages. For example, other former employees of Twitter filed a lawsuit in 2023 seeking severance pay promised by the company before Twitter takeover by Elon Musk, which in some employees’ cases could be equal to six months’ pay or half a year’s salary.

Payments into Retirement Accounts, and Early Retirement Awards

In certain cases involving the termination of employees who are about to become eligible or vested for pension benefits, or who are entitled to retiree medical benefits and the like, a court may order an employer or employee benefit plan to restore assets or contributions into retirement plans. This may greatly benefit employees who have retirement accounts or who may be eligible for a pension or to take early retirement due to promises of retirement plan benefits when they were hired or during their career.

Reforms to Promotion Systems

Class actions may result in changes to promotion systems that result in discrimination or that cause employees to be terminated for biased reasons under “up or out” policies. For example, Goldman Sachs settled a case regarding the women who worked in Associate or Vice President Positions in investment banking or management, or securities, in New York between mid-2022 to early 2023. The settlement apparently included changes to Goldman’s performance review process, and comparisons among employees or employee rankings, as well as vice presidents are promoted to Managing Director. A class of female non-union workers at Disney are also seeking a court order against discrimination in the promotion and pay decisions at that company. The case may affect women working at Disneyland, ABC, Marvel Studios, Lucasfilm, or the Disney cruise line. 

Compliance Programs

Compliance programs can be part of court orders, settlements, or federal consent decrees. One of the policies behind the employment laws is that compliance with the law becomes more normal.  Pay equity audits, promotion transparency, grievance procedures, diverse hiring practices, and other programs have been proposed. For example, employees of Tesla are seeking reforms to prevent discrimination or harassment against black employees. 

The Employment Class Action after Multiple Wrongful Terminations

In a class action, a named plaintiff may represent other workers, for example at Goldman Sachs or Disney. The named plaintiff may argue that his or her claim is typical of those of other employees who have not been identified yet. The employer may be compelled to produce business records sufficient to decide which employees fit within the category of victims described in the main complaint. A federal or state court may hear a motion for class certification, and analyze business records and interviews done by wrongful termination lawyers of employees, supervisors, and even owners to decide whether there is a class or category of workers that is so large that individual lawsuits are not practical, whose victimization by their employer involves similar questions of law or fact, the claims or defenses of the main plaintiff(s) are typical of the other victims/employees, and the main plaintiff and law firm(s) will fairly and adequately protect the interests of the other employees. There is another analysis that relates more to whether class action is the best option for the fair and efficient resolution of the discrimination issues that have been raised.

Just because individual jobs, salaries, or termination dates differ does not mean that a class action cannot be filed. As in the Goldman Sachs or Disney cases, a worker may be a victim of a common pattern or “course of events” even though her or his individual circumstances are always a little unique.  

Next steps

A qualified workplace discrimination and harassment attorney may be able to help remedy workplace discrimination. Depending on the circumstances, compensation may be owed to an employee who suffers wrongful termination, discrimination, a failure to promote, harassment, or retaliation. A free consultation can help you understand your rights and take action to protect them, including by contacting human resources or the government.