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Employer tips for lawfully ending the employment relationship

New York Law Journal

Publication August 2019

This article addresses best practices for discharging an employee in order to decrease the risk of potential exposure to a lawsuit and to maximize an employer’s ability to defend against a claim of discriminatory discharge.

Absent contract terms to the contrary, most employees in New York are employed on an “at-will” basis. This means that employers can fire employees at any time for any reason, or for no reason at all, provided that the reason is not unlawful. If an employee is employed pursuant to a contract (whether an individual employment contract or a collective bargaining agreement), then the terms of the contract apply, and the company should carefully review the contract before making a decision to terminate an employment relationship. It is also unlawful to terminate an employee, or to take any adverse employment action against an employee (e.g., decrease in pay, diminished job responsibilities, etc.), because of the employee’s age, race, religion, sex, national origin, actual or perceived disability, or any other class protected by federal, state and/or local law. Examples of protected classes under the New York City Human Rights Law include gender identity, marital status and partnership status, pregnancy, sexual orientation, status as a veteran or active military service member, arrest or conviction record, caregiver status, credit history, unemployment status, salary history and status as a victim of domestic violence, stalking and sex offenses.

Despite the fact that an employer may have a legitimate, nondiscriminatory business reason for terminating an "at-will" employee, an employer may find itself to be the subject of a discriminatory termination lawsuit. This article addresses best practices for discharging an employee in order to decrease the risk of potential exposure to a lawsuit and to maximize an employer’s ability to defend against a claim of discriminatory discharge. (This article assumes that the employee is at-will and is not part of a unionized workplace, public employment or employed by contract.)

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