There is no such thing as a “wrongful termination.”
Getting fired is one of the hardest things that can happen to someone. Especially if it’s a surprise or happens under unfair circumstances. And one of the hardest conversations we have with people who have been fired, is telling them that there’s not much they can do from a legal standpoint.
Why is that? Well, in New York, there is no such thing as a wrongful termination in an abstract sense. There is only a termination that violates a particular law, or that violates someone’s employment agreement. Since many employees do not have employment agreements, today we are focusing on what we call “at will” employees – employees who can be fired at any time for any reason, assuming that reason is not discriminatory or in retaliation for making a complaint that the law protects.
So, let’s talk about the two main categories of true illegal terminations: discrimination and retaliation.
What is a discriminatory termination? Discrimination means that you were fired because of your protected status. State and federal law protect all sorts of statuses like your sex, race, national origin, age, pregnancy, if you have a disability, your military service, and others. All of us have a protected status, but discrimination is when an action is taken against you because of that status.
What is a retaliatory termination? Retaliation can be a little bit trickier. Not all complaints are protected from retaliation. For a complaint to be protected from retaliation, you have to be complaining about something that the law protects. It can’t just be a general grievance or that your boss mistreated you or that a coworker is acting unprofessionally. It has to be a complaint of otherwise illegal conduct, such as harassment because of a protected status (like sexual harassment), or illegal activity protected by a whistleblower law (like a workplace safety law). You can also be retaliated against for other types of activity the law protects, like requesting a reasonable accommodation of a disability, using your FMLA leave or, if you are a public employee, exercising your First Amendment rights.
There are countless circumstances where a termination is incredibly unfair but the circumstances when there is legal recourse – usually meaning the ability to recoup your lost wages in a lawsuit or through an administrative proceeding – are few and far between. If you believe your termination falls within that second scenario, you should call a lawyer as soon as possible because there are strict time deadlines in all employment cases, and the clock starts ticking on the date of the action you are complaining about.
