Unlawful Punishments by Employers in New York
What does it mean for an employer to penalize a witness or victim?
When an employer institutes penalties or other detriments to an employee that has missed work to testify or assist with an investigation.
The most common way this happens is when an employer terminates an employee for assisting with a criminal investigation.
Here are some situations that an employer will be penalizing a witness or victim.
- An employee witnesses a violent crime while leaving her apartment. She notifies the police. She is later subpoenaed to give her testimony at the trial. She alerts her employer. Her employer states that she will be terminated if she misses work and does not care if she had a subpoena. After she misses work to testify, her employer leaves her a message that she is fired.
- A person suffers an assault over the weekend. She tells her employer that she has a meeting with the district attorney and will be missing work. He says that she will dock her a week’s pay even though she will only be gone for a few hours.
- A son’s father was murdered during a failed home burglary. He wants to be at the trial and sentencing of the accused. The son’s employer states that will be fine, but he will need to perform all custodial services (not one of his duties) for the building for an entire month for his missed work time.
- A car salesman who assisted a victim as a good Samaritan is scheduled to meet with investigators for pre-sentencing arrangements. His employer states that he will lose 20 percent of his commission of all the cars he sells that week.
This list is not exhaustive. There are many ways that an employer will be penalizing a witness or victim.
If you or a loved one has been charged with penalizing an employee for being a witness or victim, please call our law offices today! Our attorneys can assist you or your loved one throughout the entire process.
What does New York’s law say about employers penalizing a witness or victim?
In New York, if an employer penalizes a witness or victim, it is a criminal offense.
§125.14 Employer unlawfully penalizing a witness or victim
If an employer chooses to instigate a penalty or discharge an employee for taking advantage of their rights as a victim or witness, it will be considered an employer is unlawfully penalizing a witness or victim.
Also, if an employer discharges or penalizes a witness or victim after they have been subpoenaed, it will also be considered unlawful. The law states that a victim includes the person who suffered harm due to criminal behavior, their representative, their next of kin, if deceased, and any person that assisted the victim as a good Samaritan.
- For example, Christina was murdered by Dee during a domestic dispute. Christina’s sister, Adriana, is her next of kin. Adriana works for Terry in his dry-cleaning business. Adriana lets Terry know that she wishes to testify on behalf of her sister at the sentencing of Dee, which is in a couple of days.
Terry expresses his reluctance since dry-cleaning orders can get backed up without her. Adriana informs Terry that she is going whether he likes it or not since her sister was murdered. On the day of sentencing, one of Adriana’s co-workers quits, and the dry cleaning has been severely delayed by the lack of the two workers.
When Adriana returns, Terry informs Adriana that since she went to the sentencing, the dry-cleaning business suffered by losing some customers. He tells Adriana that he is going to deduct the losses from her paychecks. Terry is an employer that has unlawfully penalized a victim.
Violations of this statute is a class B misdemeanor. Penalties for Class B misdemeanor convictions are a maximum fine of 500 dollars and up to one year in jail.
An employer can raise a variety of defenses to charges of employer unlawfully penalizing a witness or victim.
- New York law states that the only response an employer can make to an employee who wishes to pursue their rights as a witness or victim is to deduct wages from the time they missed. Anything more than excessive than this will be construed as unlawfully penalizing a witness or victim if an employer can reasonably assert that the penalty instituted against the penalty was their wages from a lost time.
- Also, an employer does need to receive notice from their employee about missing work for these reasons. Notice is not required in every situation, but it may be a defense if notice was not given, and that was the reason the employee was penalized or dismissed.
- Another defense an employer could raise is that they fired the employee for a different reason, and the employee was an at-will employee. An employer with at-will employees can fire an employee for any cause, except unlawful causes.
However, if an employer terminates an employee after receiving a notice that the employee wishes to utilize their rights as a witness or victim, it will probably be viewed as retaliation rather than for a legal cause.
There are additional defenses that may be raised by an employer. If you have any questions or concerns about defenses that may be raised or charges of an employer unlawfully penalizing a witness or victim, please call one of our offices today. Our attorneys are happy to discuss your situation.
An employer who unlawfully penalizes a witness or victim can be charged with a class B misdemeanor. The maximum penalties for a class B misdemeanor are a fine of 500 dollars and a year in jail.
If an employer unlawfully penalizes a witness or victim, can they be charged with other crimes?
Yes. Depending on the circumstances, an employer who unlawfully penalizes a witness or victim may also face charges for similar crimes.
Bribing or tampering with a witness
An employer who learns that an employee wishes to be involved as a witness or victim, or is subpoenaed to be involved, needs to allow these employees to fulfill these wishes or obligations. An employer who uses bribery or threatens an employee could be seen as violating two different statutes: bribing a witness and/or tampering with a witness.
- For example, Diana became the key witness after witnessing various criminal activities from a notorious criminal organization. The trial is expected to last at least two weeks, and the prosecution has subpoenaed Diana to be present for the entire trial. She has informed Cooper, her employer, that she will not be able to work for those two weeks and possibly longer due to subpoena.
Cooper is highly satisfied with Diana’s work and does not want to hassle with finding an employee to cover her for those two weeks. He offers Diana a bonus if she “finds a way not to testify and come to work.” After Diana refuses, Cooper becomes upset and threatens to fire her if she does not come to work during those two weeks. Cooper has bribed and tampered with a witness.
Bribing a witness is a felony and tampering with a witness, depending on the severity, could be a misdemeanor or felony. Felonies have increased fines and incarceration times.
Also, if the investigation or proceedings are for a federal offense, an individual could be facing a federal charge of tampering with a witness. Penalties for these violations are much more severe and could result in substantial fines and up to 20 years in prison.
An employer who unlawfully penalizes a witness or victim may also be violating employment discrimination laws. As noted earlier, an employer usually hires an employee to be at-will so that the employer can choose to terminate for any cause.
However, New York has adopted various times when an employer may not discharge an employee. This includes dismissing or penalizing an employee who has been the victim of domestic abuse, a sex offense, or stalking.
- For example, Tina works for a medium-sized accounting firm. Her boss, Craig, has always found Tina to be odd but has incredible accounting skills. He begins to notice that Tina’s behavior becomes even more unusual, but she still performs high-quality work.
Craig calls Tina into his office to discuss her sudden change of behavior. She reluctantly states that she has been stalked by her co-worker Ted and he frequently will text her pictures of her house in the middle of the night. Tina has indicated that she plans on leaving during her lunch break to inform authorities about the stalking and intends to press charges against Ted.
Craig has known Ted for over 20 years. He does not believe that Ted would do such a thing since he is a committed family man. He believes Tina has developed an interest in Ted and it was unrequited and now is pursuing criminal charges to harm Ted.
He is also afraid of what harm it could do to the accounting firm if the media became aware that an individual at his firm has been accused of stalking. He also believes it may alarm other female employees at the firm and cause a mass exodus.
Craig tells Tina that he does not believe her, and if she pursues criminal charges against Ted, she will be fired. Tina tells Craig that she will be pressing charges against Ted whether he likes it or not. Craig then terminates Tina from the firm. Craig has violated the law protecting victims of domestic abuse, sex offenses, and stalking.
Other criminal laws may also be violated when an employer takes measures to penalize a witness or victim. Employers should also be aware that in some cases, an employee may be able to bring a civil action against the employer for wrongful discharge.
An employer who is facing a charge for unlawfully penalizing a witness or victim may also be subject to additional criminal charges and in some cases civil action by the employee.
What have the courts said about employers unlawfully penalizing a witness or victim?
The courts in New York have only looked at a couple of issues with the law that forbids employers from unlawfully penalizing a witness or victim.
- In Buchwalter v. Dayton Mgt., a New York court determined that employees who are unlawfully dismissed for exercising their rights as a witness or victim have a cause of action against their employer as long as that employee provided proper notice.
The plaintiff, Barbara Buchwalter, was dismissed by Dayton Management Corp. (Dayton). Buchwalter had received a subpoena to testify in a criminal proceeding and missed a day of work.
Buchwalter insisted that Dayton had fired her since she missed work to testify and that the law allowed her to proceed with a wrongful termination suit. Dayton stated that since the law did not expressly state a civil remedy, Buchwalter’s case should be dismissed. The court agreed with Buchwalter.
The court stated that if there is a criminal penalty for a law, then most of the time, a civil remedy will be implied for the victims of the criminal behavior. However, for a victim to pursue a wrongful termination case, they need to meet all of the essential elements of the crime.
Buchwalter had failed to indicate that she provided notice to Dayton that she was going to miss work to testify in criminal proceedings. The court allowed Buchwalter to replead the case so that she can assert that all the elements of the law have been met.
Here are a couple of court cases that address issues with employers discriminating against victims.
To read the court opinion in full, please click here. Or copy and paste the following.
- In Reynolds v. Fraser, a New York court determined that if reasonable accommodations are not given to employees who have suffered domestic abuse and are terminated for a different reason, can be reinstated with back pay. The plaintiff, Reynolds, was hired by the New York City Department of Correction.
After a few months, Reynolds became homeless with her two kids due to her husband’s violent abuse. After informing the Department’s Health Management Division (HMD), her badge was confiscated, and she was deemed psychologically unfit to carry a firearm until she found a residence.
HMD required her to put down an address, and she reluctantly placed her husband’s address even though she did not live there. Reynolds continued to try to find another residence during her leave and was unsuccessful for a time. During this time, HMD conducted a few interviews with her husband’s address, even though Reynolds insisted that she did not live with her husband at the time. However, HMD required Reynolds to state why she was not at the address while on sick leave, which is a violation of the Department’s sick leave policy. Reynolds eventually found a residence with a shelter designated for victims of domestic abuse.
She provided HMD with this new address, but due to confidentiality reasons, she was unable to disclose her specific address. HMD conducted a few more investigations at the shelter and was unable to meet with Reynolds for a period of time. HMD then terminated Reynolds employment for violating the terms of her sick leave by not being at home during the investigations, even though she was homeless or unable to be contacted for other reasons.
Reynolds states that she was discriminated against for being a victim of domestic abuse since she could not comply with the residency requirement since the domestic abuse had forced her to be homeless and the shelter had a confidentiality policy. HMD stated that they were not terminating Reynolds just for sick leave violations, but also for other considerations, and she should not be reinstated. The court accepted Reynolds argument.
The court stated that HMD chose to conduct numerous investigations after Reynolds asserted that she was homeless and that the shelter did not allow individuals to learn the whereabouts of victims of domestic abuse unless signing a confidentiality agreement.
To choose to terminate Reynolds’s employment shortly after conducting these investigations, and citing the sick leave policy indicates strongly that HMD was discriminating against Reynolds situation that had occurred due to her domestic abuse.
If HMD had chosen to terminate Reynolds’s employment before the domestic abuse was known, HMD would not have guilty of employment discrimination. The court reinstated Reynolds’s position with back pay.
To read the full court opinion, please click here. Or copy and paste the following.
- In Danny v. Laidlaw Transit Servs, the Washington Supreme Court determined that individuals who are terminated after helping themselves or others escape domestic abuse have a case for wrongful discharge, even though it is not expressly stated in the law.
The plaintiff, Ramona Danny, worked as a schedule manager for Laidlaw Transit Services, Inc. Danny and her children suffered from domestic abuse from her husband. Danny worked on large projects and had firm deadlines; however, she requested time off after her husband attacked her child, and he had to be hospitalized.
Her first request was denied, and her second request was reluctantly given. Danny was soon demoted to a scheduler and then terminated for falsifying payroll records. Danny asserts that she was discriminated against for being a victim of domestic abuse, and she wrongfully terminated.
Laidlaw stated that Danny did not state a valid claim. The court disagreed with Laidlaw. The court stated that the law preventing discrimination against victims of domestic abuse did not expressly allow a civil remedy.
However, due to the legislature’s strong indications that it was devoted to curbing domestic violence, the law can be implied to have a civil remedy provision. The court also believed that Danny had satisfied all of the elements of the law and could take her case to trial against Laidlaw.
The court remanded the case back to the district court to let the case progress.
To read the full court opinion, please click here. Or copy and paste the following.
Who investigates a charge of an employer unlawfully penalizing a witness or victim?
Many times, if an employer unlawfully penalizes a witness or victim, it will first be identified by the affected employee. However, in certain situations, the investigation could involve the New York Police Department.
If the crime involves federal offenses, it will most likely be investigated by the Federal Bureau of Investigation, unless another federal agency is implicated.
Do I need a lawyer if I have been charged with unlawfully penalizing a witness or victim?
Yes! Charges of unlawfully penalizing a witness or victim can be severely damaging to your business and/or your position, even if the charges are dropped. Allegations that you penalized a witness or victim or trying to exercise their rights can jeopardize career opportunities, damage reputations, affect personal and professional relationships, and could lead to very bad publicity for your business or organization.
You require a legal team that understands all of the stress that will accompany criminal charges of this nature. Our team is competent and experienced in these areas of the law and knows best how to represent you and your interests.
They have the legal skills to help you to prepare for the investigative process and also allow you to meet your other obligations. Our attorneys are ready to assist you!
Call us for a free legal consultation!
Related Press Release
New York AG introduces legislation that will criminalize retaliatory behavior from employers towards immigrants
New York Attorney General, Letitia James, has introduced new legislation that will prevent employers from using an immigrant’s status or the immigrant status of their loved ones in order to compel them to work or not to report unsafe or unfit working conditions.
Recently, an employer at a popular golf club visited by President Trump was alleged to have used an immigrant’s status to compel that employee not to report her boss’s behavior. This legislation is being introduced to quell such behavior by providing strict punishments for any employer who violates this law. Any employer who violates this law could be subject to a 20,000 fine and up to 3 months in jail.
To read the press release in full, please click here. Or copy and paste the link below.