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Whistleblowing protected despite NY’s at-will status

Firing an employee is never easy but it is necessary at times, and in New York, employers do not have to justify or even document the reasons. According to the state Attorney General's office, New York is an "employment-at-will" state, and non-government employees have no grounds for legal redress if discharged, despite whether they view the action as being unfair.

However, that does not mean that there are no protections for employees. Circumstances under which a fired employee may sue for damages or reinstatement include union and other employment contracts with specific termination clauses or grievance procedures to be followed, as well as "whistleblowing."

The whistleblower law protects workers from being fired for revealing illegal actions by the company that put public health or safety at risk. The law also protects whistleblowers from being fired for refusing to participate in these same actions. Under this state statute, a whistleblower may sue for attorney fees, pay owed and even recovery of their position. Additionally, employees may bring suit against employers if they believe their discharge is for any of the following reasons:

  • Off-site political or recreational endeavors for jury duty
  • Religion, race, age, disability, gender, sexual orientation or arrest record
  • Being a victim of stalking, sex offenses or domestic violence
  • Filing for workers' compensation or disability benefits

While there may be plenty of reasons to fire an underperforming employee, there are several things the employer can do to make the discharge itself a little easier on everyone involved. The Harvard Business Review suggests that supervisors take action quickly after deciding to fire someone. Procrastination allows the poor performance to continue and only puts more stress on the supervisor.

A supervisor should meet privately and get to the point. The words "We're letting you go" should be in the first few sentences spoken and the reason why should follow quickly. It is also a good idea to have a representative from human resources attend to witness and document the action and to answer questions about final paychecks, health insurance and more.

Supervisors should remain in the room out of respect for the employee and the HR representative. The employee is likely to have questions, and the supervisor should be there to answer them. Following the termination, it is important to let others know the employee is gone, but they do not need to know the reason; that is confidential.


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