Can My Employment Be Terminated Although I Have Not Received Negative Performance Reports
Full Question:
Answer:
In New York, employees are presumed to be "at will." At-will employees may be terminated for any reason, or no reason at all, so long as it's not illegal, such as being discriminatory based on race, age, sex, handicap, religion, or national origin, or in violation of an employment or union contract. Without a contract restricting termination (such as a union collective bargaining agreement) an employer has the right to discharge an employee at any time for any reason, and doesn't have to provide an explanation or justify its decision. Unless required by an employment or union contract, performance reviews are not required to be given.
There are a few exceptions to "employment-at-will." The most significant of these are laws, enforced by the New York State Division of Human Rights, which prohibit discrimination based upon race, creed, national origin, age, handicap, gender, sexual orientation or marital status.
Other exceptions to the doctrine of "employment-at-will" exist under § 201-d and § 215 of the New York State Labor Law. Section 201-d prohibits an employer from firing an employee for political or recreational activities outside of work, for legal use of consumable products outside of work, or for membership in a union. Section 215 prescribes that no employer shall penalize any employee for making a complaint to the employer, to the Commissioner of Labor, or to the Commissioner's representative, about any provision of the Labor Law. Violation of § 215, can bring a civil fine and separate civil action by the employee.
You may be denied unemployment benefits if:
* You were fired because your employer alleged that you violated a company policy, rule or procedure, such as absenteeism or insubordination; because of a disagreement or dispute with a boss or co-worker; or you were fired for any other reason.
* You quit your job.
The following is from the New York State Labor Department:
Sec. 593.Disqualification for benefits.
1. Voluntary separation.
(a) No days of total unemployment shall be deemed to occur after a claimant`s voluntary separation without good cause from employment until he or she has subsequently worked in employment and earned remuneration at least equal to five times his or her weekly benefit rate. In addition to other circumstances that may be found to constitute good cause, voluntary separation from employment shall not in itself disqualify a claimant if circumstances have developed in the course of such employment that would have justified the claimant in refusing such employment in the first instance under the terms of subdivision two of this section or if the claimant, pursuant to an option provided under a collective bargaining agreement or written employer plan which permits waiver of his right to retain the employment when there is a temporary layoff because of lack of work, has elected to be separated for a temporary period and the employer has consented thereto.A voluntary separation may also be deemed for good cause if it occurred as a consequence of circumstances directly resulting from the claimant being a victim of domestic violence.
Paragraph (a) as amended by L. 1999, Ch. 268, effective July 20, 1999.
(b) A disqualification as provided in this subdivision shall also apply after a claimant`s voluntary separation from employment if such voluntary separation was due to claimant`s marriage.Subd.1 as amended by L. 1981, Ch. 234 effective June 15, 1981, L. 1983, Ch. 415,
effective September 5, 1983, and L. 1987, Ch. 418, effective July 27, 1987, and further
amended by L. 1998, Ch. 589, effective April 1, 1999.
2. Refusal of employment. No days of total unemployment shall be deemed to occur beginning with the day on which a claimant, without good cause, refuses to accept an offer of employment for which he is reasonably fitted by training and experience, including employment not subject to this article, until he has subsequently worked in employment and earned remuneration at least equal to five times his or her weekly benefit rate. Except that claimants who are not subject to a recall date or who do not obtain employment through a union hiring hall and who are still unemployed after receiving thirteen weeks of benefits shall be required to accept any employment proffered that such claimants are capable of performing, provided that such employment would result in a wage not less than eighty percent of such claimant's high calendar quarter wages received in the base period and not substantially less than the prevailing wage for similar work in the locality as provided for in paragraph (d) of this subdivision. No refusal to accept employment shall be deemed without good cause nor shall it disqualify any claimant otherwise eligible to receive benefits if:
(a) a refusal to accept employment which would interfere with a claimant's right to join or retain membership in any labor organization or otherwise interfere with or violate the terms of a collective bargaining agreement shall be with good cause;
(b) there is a strike, lockout, or other industrial controversy in the establishment in which the employment is offered; or
(c) the employment is at an unreasonable distance from his residence, or travel to and from the place of employment involves expense substantially greater than that required in his former employment unless the expense be provided for; or
(d) the wages or compensation or hours or conditions offered are substantially less favorable to the claimant than those prevailing for similar work in the locality, or are such as tend to depress wages or working conditions.Subd.2 as amended by L. 1983, Ch. 415, effective September 5, 1983, and by L. 1983, Ch. 554,
effective July 20, 1983. Opening paragraph amended, and paragraph (a) repealed and new paragraph
(a) added by L. 1998, Ch. 589, effective April 1, 1999, and amended by L. 2000, Ch. 5, effective
February 15, 2000. Paragraph (d) as amended b L., 2002, Ch. 282, effective August 6, 2002.
3. Misconduct. No days of total unemployment shall be deemed to occur after a claimant lost employment through misconduct in connection with his or her employment until he or she has subsequently worked in employment and earned remuneration at least equal to five times his or her weekly benefit rate.Subd.3 as amended by L. 1983, Ch. 415, effective September 5, 1983, and further amended
by L. 1998, Ch. 589 effective April 1, 1999.
4. Criminal acts. No days of total unemployment shall be deemed to occur during a period of twelve months after a claimant loses employment as a result of an act constituting a felony in connection with such employment, provided the claimant is duly convicted thereof or has signed a statement admitting that he or she has committed such an act. Determinations regarding a benefit claim may be reviewed at any time. Any benefits paid to a claimant prior to a determination that the claimant has lost employment as a result of such act shall not be considered to have been accepted by the claimant in good faith. In addition, remuneration paid to the claimant by the affected employer prior to the claimant's loss of employment due to such criminal act may not be utilized for the purpose of establishing entitlement to a subsequent, valid original claim. The provisions of this subdivision shall apply even if the employment lost as a result of such act is not the claimant`s last employment prior to the filing of his or her claim.Subd.4 as amended by L. 1991, Ch. 248, effective July 1, 1991, and further amended by
L. 1998, Ch. 589, effective April 1, 1999.
5. Terms of disqualification. A disqualification pursuant to the provisions of this section shall not be confined to a single benefit year.
