Why You Should Consult a Lawyer Before Firing an Employee in New York

Why You Should Consult a Lawyer Before Firing an Employee in New York

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So many businesses - big and small - closed in New York during 2020 (check out a list here). 

It's always difficult to lay someone off. It's especially difficult now, because you know your employees are struggling financially, physically and emotionally. 

Before you start laying people off, remember that you may qualify for a Payment Protection Loan as part of the new stimulus package.  

But there's a chance that may not be enough to save your business. If you anticipate having to lay employees off in 2021, talk to a lawyer first. Even though money is tight, you will  likely save yourself money down the road if you consult with a lawyer about the best way to terminate a working relationship.

Unemployment in New York

In November, the unemployment rate in New York was 8.4%. In New York City, the situation is even worse. Over 12% of people are unenemployed. 

There are a number of federal, state, and municipal laws related to running a business in New York State. Those laws vary from how you must pay wages to discrimination and managing a safe workspace. You may have additional obligations if you have a specific agreement with your employee including a collective bargaining agreement or a union contract set as per those agreements.

In most cases, the termination of an employee in New York State is often lawful. Under the New York Employee termination laws, you can terminate your employees if the scenario meets one of the following:
  • Downsizing. Your business may not be doing well and you need to cut costs of operating your business. In this case downsizing of human capital involves terminating or laying off your workers to save your business from going under. Under the New York state termination laws, employers can choose to let go of any employee they want without explanation in order to save the company.
  • Poor performance. Employees performing badly at their jobs may sink down your business, and therefore you may consider firing them to curb the losses. Although it may seem arbitrary and unfair, it is lawful as long as it is free from discrimination of any type and that retaliation is not involved.
  • Misconduct of employees may vary to include sluggish behavior of being late to work or conflicting with colleagues among other unprofessional behaviors. In that case, it is lawful to fire this employee as long as you have enough evidence to prove their misconduct.
  • Conflict of personalities. This is also may seem like an arbitrary decision, but under the New York State wrongful termination laws, you are allowed to discharge a worker who differs way too much to work with another employee. In such case, you would be obliged to choose one of them who would best benefit the business.
Why a lawyer can help
But terminated employees can still complain. A lawyer can tell you what to say and not say, what to put in writing, and what not to. This will safeguard your business from possible employee complaints and lawsuits, litigation, and investigations by government agencies.

Lawyers could help you draft suitable employment and termination agreements, train human resources personnel, and conduct confidential internal investigations and compliance audits. Having a lawyer look into how you run your business may also help you carry out suitable employee evaluations, warning notices, terminations, and disciplinary measures when necessary.

Having a lawyer on your team will help you with potential arising issues and claims including:
  • An employment agreement set for a specific period of time. If you have that type of contract with your employee, then you are controlled by this agreement including the period of employment, terms in which the employee is working for you, and what ground would permit you to fire the employee.
  • Employees who are members of a union. A union contract or “collective bargaining agreement” will include many rights and responsibilities of each of you.
  • Discrimination. New York State and New York City laws bar discrimination on the basis of sexual orientation, gender, race, and religion. That doesn’t only govern termination, but also the law covers decisions regarding hiring, promotions, wage, benefits, and any other significant aspect of employment.
  • Misclassification of exempt employees. Some employees such as ‘bona fide’ executives and professionals may be “exempt” from the Fair Labor Standards Act (FLSA) and the New York Labor Law( NYLL) requirements. These set of laws set wage, overtime pay, frequency-of-pay, and recordkeeping apply to many employees specifically those in lower-wage positions as they are considered “non-exempt.” Although FLSA often determines who is exempt and who is not, a lawyer will help you to properly determine how to “classify” an employee who may be in one category and not the other or either.
  • Wages.  A lawyer will also help you determine who is qualified to be protected by certain aspects of the NYLL. For example, employees who earn more than a certain amount per week are not qualified, and those who make more than a certain amount in tips during a specific period of time may qualify for a different minimum wage under the FLSA.
  •   Complaints raised about not receiving benefits. In New York, Governor Andrew Cuomo enacted a law that provides benefits, including paid family leave, sick leave, and disability benefits to employees impacted by mandatory quarantine due to the pandemic. An employee may file a complaint against you if you are not abiding by this law.
 
If you don’t plan to hire a lawyer then at least consider consultation in cases that are worth legal advice. A lawyer could review and assess your employee handbook and policies and agreements. They could also offer consultation on the type of evidence you need to bring to a court hearing and bring your attention to potential allegations made by more than one employee following their termination and how you can best protect yourself from these claims.

We can help you find a lawyer who will work with you for a reasonable price. 

This article is intended to convey generally useful information only and does not constitute legal advice. Any opinions expressed are solely those of the author, not LawChamps.




 
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