[NY] How should I handle my job being eliminated after I complained about another employee?
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Harassment/retaliation/discrimination is against the law; however, employment law only makes it against the law if the basis of these actions by the employer are based on your race, gender, age, religious affiliation, or disability. Employment law doesn’t necessarily cover people who act like jerks.
The problem here is that even if you complained about another employee, which is something that you can do, it's not a legally protected activity under NY or federal law.
Also, employment in NY is “at-will.” The New York Court of Appeals has consistently applied a strict rule that "absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party:"
- Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 333, 514 N.Y.S.2d 209, 211, 506 N.E.2d 919, 920 (1987)
- Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983)
- Rooney v. Tyson, 127 F.3d 295 (2nd Cir. 1997)
This means that an employer also has the right to demote, suspend, transfer, or otherwise change the employment of a person. Employees also have a right to leave the employment at any time as well.
So if they are offering any kind of mutual settlement, it may be wise to take it.
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My employer is eliminating my position after I complained about another employee but it's not discriminatory by law. He is now asking me to do a mutual agreement but I am not in agreement. What is the best way to handle this?
I'm sorry to hear about your situation. Have you been given any documentation regarding the elimination of your position?
No, he has only had verbal conversations with me, but I did record them.
Can you provide more details about the reasons you are not in agreement with the mutual agreement proposed by your employer?
Because he is saying that him allowing me to finish out the month working is my severance and does not want to pay my 2 weeks of unused PTO. Additionally, I am a misclassified employee as I have been on a 1099 but have been obligated to be in the office and request time off as if I was an employee.
Is there anything else the Employment Lawyer should know before I connect you? Rest assured they'll be able to help with misclassification and severance.
The timeline for this started on 2/14 when I sent the email to him—that's about it.
Hello! Legal Eagle here. I'm reviewing your issue in detail.
Have you documented any specific instances or evidence that support your claim of misclassification as an employee?
Hi! Yes, I have emails that support I was reprimanded for not being in the office and also that I had to ask for PTO.
I had an office as well. I am still the HR Director here.
Have you had any discussions with your employer about the misclassification of your employment status, and if so, what was their response?
No I haven't.
What state is this in again?
NY.
I'm so sorry about this situation! I want to address your situation with a detailed response, so if you have any questions, don’t hesitate to ask because this law stuff can get complicated. I have dealt with some terrible co-workers, managers, and subordinates in my time. It’s one of the reasons I decided to become self-employed—because I just couldn't take it anymore.
Nonetheless, it’s important to analyze the law in this situation.
Harassment/retaliation/discrimination is against the law; however, employment law only makes it against the law if the basis of these actions by the employer are based on your race, gender, age, religious affiliation, or disability. Employment law doesn’t necessarily cover people who act like jerks.
The problem here is that even if you complained about another employee, which is something that you can do, it's not a legally protected activity under NY or federal law.
Also, employment in NY is “at-will.” The New York Court of Appeals has consistently applied a strict rule that "absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party:"
- Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 333, 514 N.Y.S.2d 209, 211, 506 N.E.2d 919, 920 (1987)
- Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983)
- Rooney v. Tyson, 127 F.3d 295 (2nd Cir. 1997)
This means that an employer also has the right to demote, suspend, transfer, or otherwise change the employment of a person. Employees also have a right to leave the employment at any time as well.
So if they are offering any kind of mutual settlement, it may be wise to take it.
I know it is a lot, but does that make sense?
Hello! I want to make sure ALL of your concerns were addressed. Did you have any concerns about this that still need to be addressed? I'm happy to help.
Yes, I understand. Just one more question—if they are asking me to sign a mutual separation agreement without giving me severance—am I obligated to sign? Can they withhold my last check?
Legally no, but usually it helps to sign these things so you can at least get some cash out of this.
I'm not signing lol because they are offering to pay my accrued PTO and nothing more. That’s not worth signing over my rights for future lawsuits or an NDA.
I hear that and I'm so sorry. Did you have any other details you needed addressed or did you have any concerns in general you still needed addressed?
Nope, thank you.
You bet. I'm sorry to hear about your situation! Thank you for trusting AskaLawyer with your question.
