WRONGFUL TERMINATION: DOES IT EXIST AS A LEGAL CLAIM?

December 17th, 2014 Posted by No Comment yet

Employees often claim that they were “wrongfully terminated.”  In the State of New York, and almost every other state, no such claim exists.  As an “at will” employee your employer can hire and fire you for any reason or no reason at all without consequence.  Indeed, regardless of how good your performance is, being terminated for political reasons, because your boss does not like you or because HR falsely accuses you of some misconduct does give rise to a legal claim of “wrongful termination.”

This does not mean employees lack rights that give rise to legal claims against their employers.   Employers can be held legally responsible for monetary damages resulting from, among other things, breaching a contract of employment for set period of time before such time expires, breaching a contractual commitment related to your compensation, equity and/or benefits, violating statutory laws related discrimination, retaliation for reporting discrimination, “whistle-blowing,” family medical leave, and for tort claims such as defamation and interfering with a future employer.

That also does not mean that these types of issues leave you powerless to negotiate with your employer for severance or other needed post-employment benefits.  Such non-legal issues can often be powerful negotiating leverage it applied properly.

HAVE YOU EXPERIENCED ACTIONABLE WORKPLACE HARRASSMENT?

December 17th, 2014 Posted by No Comment yet

The fact that a manager yells at, or is abusive towards, his/her employee(s) does not necessarily give rise to an actionable legal claim of workplace harassment or hostile work environment.   Under the law, your manager is, unfortunately, allowed to be abusive either to some or all his subordinates so long as such behavior is not motivated by a discriminatory bias.  That is, unless you are being harassed because of your race, gender, age, sexual orientation, national origin, religious belief, etc., there is no violation of law.

This does not mean you should ignore the abusive behavior if it is affecting your work environment and/or your health.  You have the right to bring the problem to the attention of Human Resources or senior management to try and remedy the situation.  However, any such complaint should be done in writing.

Be mindful that unless discriminatory bias based on a protected category is the motivation for the abusive environment your manager is creating, you will not be protected from retaliation if you complain.  Your employer may do nothing to remedy the matter.   Indeed, employers, absent some real physical threat of harm to its employees, are free to allow such behavior no matter how detrimental to office morale, productivity and emotional health it may be.

Under all circumstances, if you do feel you need to report the matter to HR or senior management, make sure you put your complaint in writing either initially or as a follow-up to the conversation.

 

 

ARE YOU REALLY AN INDEPENDENT CONTRACTOR?

December 17th, 2014 Posted by No Comment yet

It is to the employer’s benefit, and usually to an employee’s detriment, to characterize an employee’s employment relationship as that of an independent contractor or consultant.  Among other things, such a characterization saves the employer payroll taxes, its share of social security contributions, and the cost of providing employees with benefits.  In addition, various laws that protect full time employees may not apply to those characterized as contractors.

However, characterizing employees as independent contractors in their agreements or personnel files, and paying them on a 1099 basis does not mean such individuals are, legally, independent contractors.  The courts and the IRS look at a large number of factors in determining whether an employer has mischaracterized an employee as an independent contractor.  The primary factor centers on the issue of control.  Some of the questions to be answered to determine an employees true status include: Does the employer control the place, time and manner of the contractor’s work?  Does the employer require the contractor’s presence in the office while the work is being accomplished? Does the contractor report to an employer manager or have employer employees reporting to them? Can the contractor simultaneously provide services to another entity? Is the contractor working on a discreet project with a time limit on its completion?

In many instances, independent contractors are really W-2 employees who are losing out on employer benefits and the protection of the law while paying an extra 6.5% in taxes on the first $110,000 they earn.  The question to ask is whether the benefit derived from being an independent contractor outweighs the benefit of being an employee.

DOES YOUR EMPLOYEE HANDBOOK PROTECT YOU FROM RETALIATION?

December 17th, 2014 Posted by No Comment yet

The simple answer is rarely. Unfortunately, where an employer includes language in its employee handbook that the handbook is not intended to be a contract, that its employees are employed “at will,” and/or that the terms can be enforced at the employer’s discretion, the promise in the handbook that employees will be free from retaliation for reporting misconduct are ephemeral.  (Please understand this is different from retaliation for reporting discrimination in the workplace or under a specific whistleblower statute.  Under those circumstances the legislature has made it the law that you are protected from retaliation for making a good faith reporting.)

Employees should be cautious in their dealings with Human Resources, and wary of any promises, whether written or oral, that they will be protected from retaliation for reporting any misconduct directed towards them or others.  Employees who feel they have no choice but to report misconduct, should do so in writing following confirmation from HR that they will not be retaliated against for doing so per the employee handbook.