Provided by: Jennifer Kirschenbaum, Esq.
March 18, 2025
Question:
Jennifer,
I received a complaint from the New York State Commission on Human Rights from a current employee who works for me claiming I refuse to give her a raise because she is older. Now what? She’s a terrible employee. Can I fire her?
Appreciate your input.
Dr. P
Answer:
Under no circumstance can you file the employee for filing the complaint with the Commission on Human Rights. Doing so is a one-way ticket to a lawsuit, including a retaliation claim. Now, this employee can be fired if you have proper documentation that you are terminating for legitimate reasons, unrelated to the filing with the administrative agency policing discriminatory conduct If you elect to terminate now, or soon, the timing will be extremely suspect, since contemporaneous to your receipt of this complaint. Separate from the direct question, the complaint has to be answered in a timely manner, and I recommend competent counsel be engaged immediately. If you have EPL insurance, you may want to contact your carrier at this time just to put them on notice. You may choose to have a firm of your choice defend you at this level and reserve your right to file a claim should a litigation be filed at a later time. We can discuss why you may elect to handle directly at this time, versus engage through insurance now... That's a topic for another day.
Engaging with an administrative agency has its benefits. You have not been sued at this time. Typically, the agency's aim is to resolve complaints received through their fact-finding process. The agency often acts as mediator between the employer and the employee, seeking find middle ground and resolution. If no resolution can be found, the agency will issue a "probable cause" or "no probable cause" finding as to whether or not the employee's complaint, in the agencies view, is legitimate. If the agency thinks the complaint is legitimate a "Right to Sue” letter will be issued, which, if issued, does not necessarily mean the employer is definitely in the wrong. But, when that letter is received the complainant and their attorney, if they have one, are often more emboldened to file a lawsuit. In extremely egregious circumstances, administrative agencies can fine employers (also topic for a separate newsletter).
Back to your question, Dr. P, I hope you have documentation you can share with me showing the employee has been failing at her job. Contemporaneous documentation of poor performance by employees is necessary in order to defend yourself at times like this when a complaint has been filed. Adopting a culture of transparency and accountability for your team and regularly documenting team performance is the best way to ensure you will have what you need to defend yourself should a complaint be filed.
Let’s take a look at the employee file at your earliest convenience and talk through the defense position. Our aim will be to either resolve efficiently for little cost as possible, or to show no wrongdoing has occurred by you or your practice (a little tougher to do given today's employee friendly environment).
Happy to discuss specifics off-line. Unfortunately, nowadays, these complaints are part of the cost of doing business. Believe me, we’re better off here than in court and in front of a jury. Juries have been awarding insane awards for employer “ offenses”. Let's talk offline.
Jennifer,
I received a complaint from the New York State Commission on Human Rights from a current employee who works for me claiming I refuse to give her a raise because she is older. Now what? She’s a terrible employee. Can I fire her?
Appreciate your input.
Dr. P
Answer:
Under no circumstance can you file the employee for filing the complaint with the Commission on Human Rights. Doing so is a one-way ticket to a lawsuit, including a retaliation claim. Now, this employee can be fired if you have proper documentation that you are terminating for legitimate reasons, unrelated to the filing with the administrative agency policing discriminatory conduct If you elect to terminate now, or soon, the timing will be extremely suspect, since contemporaneous to your receipt of this complaint. Separate from the direct question, the complaint has to be answered in a timely manner, and I recommend competent counsel be engaged immediately. If you have EPL insurance, you may want to contact your carrier at this time just to put them on notice. You may choose to have a firm of your choice defend you at this level and reserve your right to file a claim should a litigation be filed at a later time. We can discuss why you may elect to handle directly at this time, versus engage through insurance now... That's a topic for another day.
Engaging with an administrative agency has its benefits. You have not been sued at this time. Typically, the agency's aim is to resolve complaints received through their fact-finding process. The agency often acts as mediator between the employer and the employee, seeking find middle ground and resolution. If no resolution can be found, the agency will issue a "probable cause" or "no probable cause" finding as to whether or not the employee's complaint, in the agencies view, is legitimate. If the agency thinks the complaint is legitimate a "Right to Sue” letter will be issued, which, if issued, does not necessarily mean the employer is definitely in the wrong. But, when that letter is received the complainant and their attorney, if they have one, are often more emboldened to file a lawsuit. In extremely egregious circumstances, administrative agencies can fine employers (also topic for a separate newsletter).
Back to your question, Dr. P, I hope you have documentation you can share with me showing the employee has been failing at her job. Contemporaneous documentation of poor performance by employees is necessary in order to defend yourself at times like this when a complaint has been filed. Adopting a culture of transparency and accountability for your team and regularly documenting team performance is the best way to ensure you will have what you need to defend yourself should a complaint be filed.
Let’s take a look at the employee file at your earliest convenience and talk through the defense position. Our aim will be to either resolve efficiently for little cost as possible, or to show no wrongdoing has occurred by you or your practice (a little tougher to do given today's employee friendly environment).
Happy to discuss specifics off-line. Unfortunately, nowadays, these complaints are part of the cost of doing business. Believe me, we’re better off here than in court and in front of a jury. Juries have been awarding insane awards for employer “ offenses”. Let's talk offline.
