Legal Question in Employment Law in New York
I am in NY, a "right to work" or "At Will Employment" state.
I was transfered to this location from a closing location and have the highest metrics in the North East. I have an exceptional record of being a good employee. Corporate knows me by name.
Recently, I have had non stop friction between myself and a manager, who is the best friend of the owner. It's a small franchise with more of a male customer base.
This manager has bragged about how is has a probation officer and how he is a real "tough guy." Same age as me. Whether or not it's to "impress" everyone, he makes the workplace excessively uncomfortable and constantly makes extremely vulgar, sexist, and racist remarks and "jokes" which the owner laughs at, though looks worried that he's laughing. He refers to African Americans in a derogatory way, as well as women and has recently began to say, in front of the "cool" customers who will not say anything negative to him, that certain women should have forced abortions, etc. and excessively graphic disturbing content about what he would do to women if angered. I am pregnant and recently started showing. Whether or not he knows for sure I am is unclear, but recently started making VERY specific comments about pregnancy and abortions, etc. Once I did say that maybe certain jokes might not be good to make, to which he replied he "didn't give a f*** and if you have a problem, leave."
Recently, he seemed more and more annoyed with me. I won't laugh at his jokes or participate and he seems upset by this. I stopped talking to him at work and began avoiding him, though always got all work done and continued to do everything expected. I cannot go to the owner because he doesn't want to upset his friend.
All the male employees have been treated differently and now there are no more females on the staff. This past week, I got upset with a younger co-worker because he made sexist remarks to fit in and I'm being "too sensitive." Meanwhile, customers have complained about the foul language this manager has used (i.e. "f word" in front of them).
After one of the owner's friends talked down to me and treated me as an inferior, I finally lost my cool and after both he and the owner talked down to me I said to my co-worker, in front of the customer who was staring, "you know, ______, I'm not talking to you that way and I'd appreciate if you'd stop treating me this way. You want to do this transaction yourself since I'm not "capable" then fine, but don't ever talk to me like that." He rolled his eyes and was nasty again.
I was terminated a few days ago. Instead of simply using the "At Will Employment" policy, which the owner LOVES to prance about saying he has the right to do, to sound impressive or intimidate people and gave the policy for all employees to read and sign, he copied and pasted a termination letter off the internet without reading the instructions for it. He used the wrong one- we NEVER had any "work counseling sessions" or written write ups or written anything. In fact, he doesn't even have a written disciplinary policy and has no idea about any law because he's never owned a business before. There were not "attempts" to fix a situation with me or any customer/employee complaints I "was aware of and signed off on"
The bottom line is that instead of simply firing, he cited things via an email he copied and pasted from the internet that are false accusations. Things that never happened. He's also threatening to hold my paycheck and stubs unless I give him emails out of my PERSONAL email account to someone and return 2 things I was repairing which are not complete and do not currently work. He has no intention on paying me for them. I have him on tape throwing the word "fag" around and other vulgar language used, but that's about it.
1. Can he LEGALLY withhold my paycheck from me if I return the 2 things I was repairing?
2. If I return them not working and he understood they were being worked on but not completed, does he have the right to not give me my money for "damages?"
3. Does he have the right to emails out of my personal account?
4. ( I AM MOST CONCERNED ABOUT THIS) Is it wrongful termination if he cited things that never happened and claimed there were written records of it, since "at will" meant he could have just fired me without giving me a reason?
2 Answers from Attorneys
You should return all property that belongs to your employer -immediately- regardless of its condition. File for unemployment and then file a claim with the EEOC and then seek advice form an attorney.
Concerning your question # 4: "Is it wrongful termination if he cited things that never happened and claimed there were written records of it, since 'at wil'" meant he could have just fired you without giving you a reason?"
Before you do anything else, I recomnend that you IMMEDIATELY consult an experienced employment diucrimination attorney about your case. Additionally, note that there are time limits, deadlines, ("statutes of limitation")), at work for your taking action against your former employer, so you should consult an experienced employment discrimination lawyer IMMEDIATELY.
At-will employment means that your employer can fire you without your having given youir employer any cause, without your having done anything wrong, without any fault on your part, whether you were performing your job well or not.
However, at-will employment does NOT mean that your employer can terminate somebody who is a member of a group which is protected by applicable civil rights laws, (e..g., women), if the employer can be shown to have discriminatory motivation in terminating that employee.
In an at-will employment company, the employer cannot terminate you based on the employer's discrimination against women or race or religion, etc.. If they do terminate you because of, e.g., discrimination against women, then that is a from of wrongful termination, and you could sue them for that discriminatory termination uner applicable federal and New York State and city laws.
One way of showing the court that your employer was motivated by bias in terminating you is the employer's tolerance of another employee, (especially a manager), using offensive sexist language (thereby committing sexual harassment and fostering a "hostile work environment" against you), especially after you had notified your employer that the manager was indulging in this harassment misconduct and no action was taken against the manager.
ALSO : An employer who has either an actual "employment contract" with its employees, or ann "implied contract", which lists the only causes for which the employees can be terminated is NO LONGER an "at-will employment" employer and can be sued for "wrongful termination" if it terminates an employee for any other reason.
Company manuals and/ or employee handboooks which spell out the causes foor which the company's employees can be termeinated are such "implied contracts" and the employer can be sued for "wrongful termination" if it terminates an employee for any other reason.
I assume that your former employer has no such actual employment contracts, no such company manuals, no such employee handbook.
Therefore, the question is whether your former employer's use of an online form, falsely accusing you of misconduct was a type of "implied contract" where they stated that they cannot and would not terminate an employee without cause.
I DON'T KNOW the answer to this, and it is another question for you to ask an experienced employment discrimination attorney.
Alternatively, another question is whether your former employer's use of an online form, falsely accusing you of misconduct could be deemed to be libel and grounds for a lawsuit for libel.
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