New York Employment Lawyer Blog

We get phone calls and emails from people every day who tell us about a wrongful termination. Some people have spent decades working for a company only to be fired on a whim. These people are often in tears or extremely upset - their careers damaged and their financial survival in jeopardy. Most all of them do not have any legal basis to challenge the termination. We have to tell them about the employment at will doctrine. It means that an employer can fire anyone at any time for any reason or no reason. The laws of this country only prohibit employment discrimination, paying wages that are too low, and several other limited laws. It seems unfair to the person who was just fired. They are often in shock to learn that there is nothing that can be done other than find a new job. While it may seem unfair, the employees often to do not realize that the employment at will doctrine is a two way street. They are free to quit anytime they want and they can quit for any reason or no reason. Both parties to an employment relationship are free to end it at will.

New York employment law firms routinely use contingent fees for certain cases such as sexual harassment and employment discrimination matters. For many clients, the contingency fee is the only option because they do not have enough money to pay a lawyer by the hour. Contingency fees also encourage lawyers to handle matters efficiently and not engage in excessive and dilatory practices. It is said by some that the hourly fee arrangement encourages lawyers to do things that are not necessary in order to run up high fees.

I personally think that many lawyers do this. How else can you explain all the nonsense that goes on in cases. I think the hourly fee is bad for everyone - it causes lawyers to file needless motions in court and this wastes precious judicial resources. The hourly fee also gives lawyers a bad rap with the public. They are seen as over-paid parasites by many and sadly there is truth to it. Legal work could be streamlined and made far more affordable and accessible. The hourly fee can be blamed for much of this.

George Bush recently signed an executive order that prohibits the federal government from paying lawyers a contingent fee. It is usually smart to do the opposite of what Bush does. Since he wants to bar contingency fees, that must mean they are good. But the private sector is catching on and more companies are hiring lawyers on contingent fee agreements. It is smart business. It aligns the interests of the lawyer and the client.

“If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.” Charles Dickens, Oliver Twist.

Title VII, the federal employment law, is only 42 years old and it is still a bachelor and sometimes it acts like an ass. Maybe with experience it will mature.

At our employment law firm in New York, The Ottinger Firm, we see many people who have been mistreated. But the law's protection in the workplace is narrow and arbitrary. Generally, only discrimination, retaliation, and certain wage practices are illegal.

Most of the time, when someone comes to see us about a problem at work, all we can do is advise them to get a new job. The best remedy is to find a great employer that treats people well. Those jobs are hard to find. For now, it is perfectly legal to abuse people at work and ruin someone's career for no good reason.

Employment lawyers continually face the problem of employees who write their innermost thoughts on the company computer. Why this happens is understandable. People spend a lot of time at their jobs and office drama and employment issues are topics of interest everywhere from water cooler conversations to television shows and movies. It is understandable that after a hard day’s work you want to vent. All that we employment lawyers ask is that you vent on your own time and on your own computers at home.

Office computers are the property of the company, as is anything on those computers from emails of your favorite crock-pot recipe to musings about what kind of tree you would be. While these examples are funny, others are not. A terminated employee who keeps a resume on her desktop and job postings in her files has just given her employer a basis for termination.

In a recent case in Iowa, a young girl kept a diary of how much she was slacking off and getting paid for it. This might be fun to read but it was also a cause for termination. As it turned out, the online diary of procrastination and malaise also led an administrative judge to deny the girl the right to collect unemployment. Judge Susan Ackeman said the journal indicated a refusal to work.

Next time you are at work and you are mad at the boss and frustrated by your co-workers and being driven crazy by the fluorescent lights, remember that whatever you put on that computer is the company’s not yours. Leave your innermost thoughts, feelings, opinions and job searches anywhere you want except the company computer.

I once defended a New York State prison that was sued for violating an inmate’s First Amendment rights. The inmate was a Rastafarian and his dreadlocks were shaved off by the prison. The inmate claimed that his dreadlocks were an expression of his faith and therefore protected by the First Amendment. He lost his case and this was part of a trend of Courts narrowing the First Amendment.

More recently, a teacher lost her First Amendment case. She gave a gay student two religious pamphlets that harped on the sinfulness of homosexuality. The student told the school about this and the teacher was fired.

She sued the state run college under Section 1983 claiming that her speech was protected by the First Amendment. The Seventh Circuit held that free speech is alive and well in the classroom, but that this speech had nothing to do with the classroom. The court held that the religious anti-gay pamphlets had no connection to the subject matter of the course, cosmetology, and therefore the First Amendment did not apply.

The court found that [T]he college had an interest in ensuring that its instructors stay on message while they were supervising the beauty clinic, just as it had an interest in ensuring that the instructors do the same while in the class room." Further, "[the plaintiff's] 'speech,' both verbal and through the pamphlets she put in [the student's] pocket, was not related to her job of instructing students in cosmetology. Indeed, if it did anything, it inhibited her ability to perform that job by undermining her relationship with [that student] and other students who disagreed with or were offended by her expressions of her beliefs. … [T]he college reasonably took the position that non-germane discussions of religion and other matters had no place in the classroom, because they could impede the school's educational mission," the court said.

Piggee v. Carl Sandburg Coll., No. 05-3228, 2006 WL 2771669 (7th Cir. Sept. 19, 2006).

Here are the guidelines of how to preserve stock options when you are fired. Exercise them and do it to the letter!

In Deal v. Consumer Programs, Inc., an 8th Circuit Court of Appeals case, Ms. Peggy Deal was fired following a change of control in the corporation. Her Employment Agreement entitled her to severance payment, unaccrued base salary and a bonus. Under a separate Options Agreement, she was entitled to purchase stock for 90 days at a reduced price post termination.

Ms. Deal received her severance but was denied her unaccrued salary and bonus. Ms. Deal retained a lawyer and notified Consumer that she was seeking the monies owed and that she was going to exercise her options. Before paying for the stock, as per the agreement, she sought reassurance that Consumer would uphold its end. Consumer did not respond to two letters sent regarding the stock options and Ms. Deal never paid the purchase price. The 90 days came and went.

Ms. Deal sued for the monies owed under the Employment Agreement and the stock. She was awarded the monies but not the stock. Both parties appealed and the appellate court said that despite Consumer’s failure to perform under the Employment Agreement Ms. Deal had no right to seek assurances for the options deal. She did not pay the purchase price for the stock and the time period for her to exercise the options had passed. Therefore, she was denied her options.

When an employee is terminated for whatever reason (or no reason at all) it is important to ferret out the employment issues from the pure contractual issues. Despite Consumer’s failure to live up to the terms of the employment agreement Ms. Deal must observe and follow the terms of a separately negotiated and signed contract with Consumer.