Is “Employment at Will” an Illusion?
Most New York State employers have heard about the “employment at will” doctrine, a concept that has been described as “an employee may be fired for good reason, bad reason or no reason at all”. Despite the fact that New York State has one of the strongest employment at will policies, undue reliance on this rule of law can pose a trap for unwary employers. Accordingly, employers must exercise caution before terminating employees, particularly longer service ones. The longer the tenure of an employee with a company, the more cause should be exercised to insure that your company or organization is acting within the scope of all employment laws.
The problem arises when an “at will” employee is terminated and claims that the reason for the discharge was the individual’s race, religion, national origin, gender, pregnancy, age or disability status. While these are most common claims, New York has a number of other “protected categories”. They are: creed, sexual orientation, military status, partnership status, alienage or citizenship, marital status, veteran status, genetic history and other characteristics protected by federal, state or local law.
Once a fired employee files a complaint with any one of the agencies that handled job-bias claims Equal Employment Opportunity Commission (federal), New York State Division of Human Rights (state), New York City Commission on Human Rights (city) or obtains and lawyer to file a claim letter or lawsuit, the employer will be required to provide a reason for the termination of an employee alleging discrimination due to membership in a protected class. Simply responding that the employee was “at will” will never suffice to carry the employer’s burden of proof. Instead, management would have to articulate a credible reason for the discharge in order to combat the claim that the person discharged was, in reality, fired because of his or her membership in any of the numerous protected classes noted above. The employer’s reasons will be evaluated by either the labor department investigator or a jury. If the reason for termination is not credible, a conclusion could easily be drawn that the reason asserted by the employer was a pretext and that the real reason was the employee’s membership in a protected class. Once that happens, expensive liability can follow, including, legal fees for the employee’s attorney.
Neither is “at will” employment a defense to a person who claims that the discharge was a result of having made a complaint about workplace safety, or management bias towards protected classes, or an employee attempting to organize a union or making a complaint about improper pay practices. Additionally, at will is no defense to various workplace romantic activities where employees are terminated by a supervisor for rejecting advances or because the relationship has broken up. Some cases have also found an implied contract in employment letters and handbooks limiting an employer’s right to discharge an employee.
Other difficulties are caused when management asserts a reason for discharge that cannot be substantiated by documentation or when management advances one reason for the discharge at the time of termination, but later, asserts a different reason, thereby detracting from the employer’s credibility.
Despite the well-known and highly popular “at will” doctrine in New York, management representatives should not be misled by this popular doctrine and should, instead, vet terminations (particularly for longer service employees) carefully, seeking expert legal advice in cases of doubt.
This Update is not intended to be legal advice, but rather is intended to inform the reader of problem areas and recent developments in labor and employment law. If legal advice is required concerning a particular matter, your attorney should be consulted.