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In brief: employee termination law in the USA (New York)

October 03, 2022 2:35 PM | Anonymous

Acces the full article on Lexology here

State procedures

Are there state-specific laws on the procedures employers must follow with regard to discipline and grievance procedures?

New York State has no laws regarding discipline and grievance procedures (other than those which may arise indirectly in connection with generally applicable laws, such as those regarding discrimination).

However, on January 5, 2021, New York City amended its Fair Work Week Law, to require New York City fast-food employers to have a written progressive discipline policy, which clearly explains key terms, rights, roles, and responsibilities, including, but not limited to:

  • probation periods for new employees, which cannot exceed 30 days from the date of hire;
  • descriptions of progressive discipline system, including its sequential steps, strikes, or other graduated responses;
  • descriptions of employee conduct or behavior, including specific examples, that would trigger progressive discipline and the type of discipline associated with each type of infraction; and
  • descriptions of employee conduct or behavior, including specific examples, considered egregious misconduct or egregious failure to perform job duties.

Employers must give a written copy of the policy to fast food employees: (1) when they start work; (2) within 14 days of any changes to the policy; and (3) upon employee request. Further, employers must keep records of the progressive discipline policy, namely (1) copies of the policy; (2) time period (effective dates) of the policy; (3) date employees received the policy; and (4) proof that employees received the policy.

At-will or notice

At-will status and/or notice period?

New York is an employment at-will state, meaning that both an employer and an employee may end an employee’s employment at any time, for any reason, with or without cause or notice, subject to any agreed upon contractual limitations and in compliance with applicable laws (e.g., anti-discrimination laws). This applies whether an employee voluntarily leaves his or her job or the employer terminates the employee’s employment.

However, on January 5, 2021, New York City amended its Fair Work Week Law, to require New York City fast-food employers to have “just cause” or a “bona fide economic reason” to discharge an employee who has completed his or her probationary period, which cannot surpass 30 days (N.Y.C. Admin. Code §20-1272(a)). The law, which went into effect on July 4, 2021, prevents New York City fast-food employers from discharging employees pursuant to the employment-at-will doctrine. With respect to terminating for “just cause” the law provides, among other things, that employers maintain a written progressive discipline policy and use such progressive discipline before terminating employees for “just cause.” (Id. at §20-1272(c)). With respect to “bona fide economic reason” the law provides, among other things, that layoffs must be pursuant to seniority, such that employees with the greatest seniority will be retained the longest, reinstated, or restored hours first (Id. at §20-1272(h)).

What restrictions apply to the above?

An employer may not terminate an employee based on the employee’s membership in a protected class. Likewise, the New York Labor Law prohibits employers from terminating an employee for his or her off-duty political or legal recreational activities outside of work, legal use of consumable products outside of work, or membership in a union (N.Y. Labor Law § 201-d).

Effective January 26, 2022, New York broadened its whistleblowing and retaliation requirements. Previously, employers were only prohibited from terminating or discriminating against an employee for making a complaint to the employer or the state’s Commissioner of Labor regarding purported violations of the New York Labor Law, including a violation which “creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud.” However, in light of the recent amendments, employees, as well as former employees and independent contractors, are protected from retaliatory action if they disclose, or threaten to disclose, to a supervisor or public body an activity, policy, or practice of their employer that: (1) the employee reasonably believes is in violation of any law, rule, or regulation; or (2) the employee reasonably believes poses a substantial and specific danger to the public health or safety. Further, the amendments expand the scope of “retaliatory action” to include any adverse action taken by an employer to discharge, threaten, penalize, or in any other manner discriminate against any employee (or former employee or independent contractor) from exercising his or her rights under the law (N.Y. Labor Law §§ 215 and 740).

Final paychecks

Are there state-specific rules on when final paychecks are due after termination?

Regardless of whether an employee voluntarily leaves his or her job or is terminated, the employer must pay the employee’s wages no later than the regular pay day for the pay period during which termination occurred (N.Y. Labor Law § 191). Wages may be paid by mail, if requested by the employee.


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