Articles Posted in Wrongful Termination

Most U.S. states now allow medical marijuana use to some extent, but marijuana remains strictly controlled under federal law. This creates a dilemma of sorts for employers. Mandatory drug testing is still a feature of many workplaces around the country, but if marijuana use is not always illegal, should it necessarily lead to firing or refusing to hire someone? The New Jersey Supreme Court recently ruled that an individual who was terminated because of lawful medical marijuana use outside of work can bring a disability discrimination claim. New York disability discrimination attorneys have been able to draw on state law to protect their clients since 2014, when the state approved medical marijuana use with express non-discrimination provisions. New York City will soon offer even more protection with a new law banning the use of pre-employment marijuana tests.

Medical Marijuana and Disability Discrimination in New York State

New York State’s Medical Marijuana Program arose from the Compassionate Care Act (CCA), which became law in 2014. The CCA states that “certified patients” have a “disability” for the purposes of state antidiscrimination law. N.Y. Pub. Health L. §§ 3360(3), 3369(2). Under the New York State Human Rights Law (NYSHRL), employers therefore may not discriminate against an employee or job applicant on the basis of lawful use of medical marijuana. N.Y. Exec. L. §§ 292(21), 296(1)(a).

New York City’s Ban on Pre-Employment Testing

In April 2019, the New York City Council passed a local law amending the New York City Human Rights Law (NYCHRL) to prohibit pre-employment testing for marijuana and synthetic tetrahydrocannabinols (THC). See N.Y. Pub. Health L. §§ 3302(21), 3306(d)(21). The new law will become effective on May 10, 2020, one year after it became law.

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Siobhan Klassen is an employment attorney at the New York City office of Phillips & Associates. Super Lawyers, a rating services that names top attorneys in numerous practice areas in every state, deemed Ms. Klassen a Rising Star in New York in 2017 and 2018. Super Lawyers regularly asks Rising Stars to address issues of public interest and recently asked Ms. Klassen to address whether a person can pursue a wrongful termination claim against his or her employer in New York.

Grounds for a Wrongful Termination Claim in New York

Although in many cases a terminated employee will have no grounds to file a wrongful termination claim against his or her employer, if the employee can prove particular factors lead to his or her termination, he or she may have a valid wrongful termination claim. In sum, wrongful termination happens whenever an employer fires an employee illegally. Examples of illegal grounds for terminating an employee include retaliation and discrimination.

Ms. Klassen clarified that most individuals are at-will employees, which means they can be terminated at any time, whether or not there is a reason for their termination, providing the purported reason for the termination is not illegal. If a person is terminated for exercising his or her legal rights at work or for a discriminatory reason, it may be considered wrongful termination, however.

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Gregory Kirschenbaum is an associate at Phillips & Associates practicing in the field of employment discrimination. Mr. Kirschenbaum has been named a Rising Star by Super Lawyers, a rating service that identifies top attorneys in each practice area, on numerous occasions. Mr. Kirschenbaum recently answered the question of whether an individual can seek damages from New York City for wrongful termination for Super Lawyers.

Nature of Employment

Most people who work for New York City, Mr. Kirschenbaum clarified, are “at-will” employees. An employee is “at-will” if either the employee or the employer can terminate the relationship at any time, regardless of whether there is a valid reason for ending the relationship. Employees who work for the City of New York pursuant to a contract, however, cannot be terminated unless it is permissible under the provisions of the contract. Typically, the City must prove that you failed to comply with the terms of the contract in some way, or that the contractual period ended so the contract no longer applies.

Claims for Discrimination and Retaliation

Mr. Kirschenbaum noted that although employers can terminate at-will employees for almost any reason, they are prohibited from firing employees due to a discriminatory bias. Rather, numerous laws, including the New York City Human Rights Law, the New York State Human Rights Law, and Title VII of the Civil Rights Act of 1964, prohibit employers from terminating employees based on their membership in a protected class. The specific classes protected depend on the terms of the precise law in question, but each law prohibits termination based on a person’s age, race, religion, disability, or sex. Employees are also protected from retaliation from their employer for reporting illegal or unethical activity or filing a discrimination or harassment claim. Additionally, New York City employees who report illegal activity in the workplace may be afforded protection under the New York City Service Law. Continue reading

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