Litigating Wrongful Termination Claims in New York (OnDemand)

Originally held on Tuesday, June 28, 2022 | 12:00 pm – 1:45 pm

Program Chair:
Richard B. Friedman
Richard Friedman PLLC

  • This program which is being presented by leading plaintiff and defendant employment litigators is perfect for in-house and outside counsel involved in litigation commenced by former employees in wrongful termination litigation matters.

    Topics to be addressed include:

    • Why The Program Title Is a Misnomer;
    • Related discriminatory, contractual, and tortious bases of a wrongful termination claim;
    • Best Practices in Preparation;
    • Gathering Documentary Evidence in Preparation for Litigation;
    • When to Send and What to Say in Litigation Holds;
    • Selection of Venue:  State, Federal, or Arbitration?
    • Procedural Responses to Claims such as: (i) removal  and (ii) whether to answer or file a motion to dismiss; and
    • Best Litigation practices.

    Program Fee:
    $149 For Members | $249 For Nonmembers

  • Steven Arenson
    Arenson, Dittmar & Karban

    Brian Heller
    Schwartz Perry & Heller, L.P.

    Julia M. Jordan
    Sullivan & Cromwell LLP

    Katharine J. Liao
    Squire Patton Boggs (US) LLP

    Gabrielle Levin
    Gibson, Dunn & Crutcher LLP

    (Mr.) Ami G. Zweig
    Weil, Gotshal & Manges LLP

  • 12:00 pm – 12:05 pm
    Introductions & Program Overview
    Richard B. Friedman


    12:05 pm – 12:15 pm
    Wrongful Termination
    i. No basis for such a claim in N.Y.
    ii. People look for other bases

    What are the Bases for Claims Arising out of Terminations?
    Discriminatory Termination in Violation of FederalState, and City Laws
    i. Federal burden shifting analysis – McDonnell Douglas Corp. v. Green, 411 U.S.
    792 (1973)
    ii. State and city prima facie case
    1. Protected categories
    2. Inference of discrimination

    iii. Examples of pretextual termination


    12:15 pm – 12:25 pm
    Retaliation Claims
    i. What is considered protected activity? Includes Wage & Hour Law Violations
    ii. There must be a causal nexus
    iii. Termination itself could be the act of retaliation
    iv. Must knowledge by corporation be actual or can it be imputed?
    v. These are very commonly asserted employment-related claims


    12:25 pm – 12:45 pm
    i. Sarbanes-Oxley Whistleblower provision
    ii. New York Whistleblower Law
    iii. False Claims Act
    iv. Qui Tam Actions

    Constructive Discharge Claims Can assualt and battery be the basis?

    Breach of Contract
    i. Default: All employees are at will.
    2. Very narrow implied-in-law “professional exception” contractual exception to employment at-will doctrine – Weider v. Skala, 80 N.Y.2d 828(1992)
    2. Implied Covenant of Good Faith and Fair Dealing
    3. Third party beneficiary claims
    ii. Fixed term contract – not common

    Quasi-Contract Claims
    i. Unjust enrichment
    ii. Quantum meruit
    iii. Fraudulent inducement to contract
    iv. Promissory estoppel

    Possible Tort Claims
    i. Physical torts are not recognized in employment context in NY
    ii.Tortious interference with contract
    iii. Defamation
    iv.Intentional infliction of emotional distress


    12:45 pm – 1:05 pm
    Preparing for Litigation

    a. Initial Client Interviews
    i. Is the termination actionable?
    ii. What is the proof?
    iii. Is it in the best interests of the client to sue?
    iv.Is there a viable defendant?

    b. Receipt of Demand Letter by Defendant’s Counsel
    i. Identify relevant individuals
    ii. Initial investigation
    a. Did employee make any preemptive complaints?
    b. Did employee make any preemptive accommodation requests?
    iii. Pre-litigation holds
    a. Preservation of ESI in anticipation of litigation
    b. Determining proper subject matter scope of the hold
    iv. Notification of insurer by company


    1:05 pm – 1:15 pm
    Gathering Evidence and Information
    i. Relevant documents:
    1. Records of prior application complaints, employment and arbitration agreements, if any, witness interviews, personnel files, performance evaluations, compensation records, timekeeping records, emails and other ESI, voicemails, audio/video recordings, employee notes/logs, letters/emails of appreciation, and prior separation agreements, if any
    ii. Other relevant evidence
    1. Conversations with current and former employees and others
    iii. The Investigation and Investigative Report
    1. Who will conduct it?
    a. Will it be priviledged
    2. How?
    3. Will report be relied upon in making an employment decision?
    4. Will there be a formal report and, if so, will it be written or verbal?


    1:15 pm – 1:40 pm
    Considerations in Bringing Claims: Courts or Arbitration?
    a. Enforceability of Arbitration Provision
    i. New law prevents employers from enforcing pre-dispute arbitration provisions and class action waivers covering sexual harassment or sexual assault claims
    ii. Existence of forum selection clause
    b. Any Benefits to Arbitration for Claimants?
    i. Confidentiality?
    ii. Allocation of costs
    c. Disadvantages of Arbitration to Employers:
    i.Possible speed of adjudication
    ii.Power of arbitrator – could award large damages and decisions are rarely overturned by courts
    iii. Limited ability to get dismissal or summary judgment
    iv. Perceived tendency for FINRA arbitrators in particular to “split the baby”
    v.Costs borne by the employer
    d. Advantages and Disadvantages in State or Federal Court
    i. Differences between city and state law, on the one hand, and federal law (decided by a judge), on the other hand, re: emotional distress damages
    ii. City law is more liberal than federal law re: punitive damages


    1:40 pm – 1:45 pm
    Responding to Claims
    a. Considerations in Removal of a State Court Case to Federal Court

    b. Considerations in Whether to Answer or File a Motion to Dismiss
    c. Motions to Dismiss Often Do Not Resolve these Cases Because These Claims Are Fact-Based
    i. Unless there is a timeliness issue, i.e., employee failed to meet an explicitly written deadline to do something
    ii. Dismissals are generally with leave to amend

  • New York: 2.0 Skills
    New Jersey: 2.1 General
    California: 1.5 General
    Pennsylvania: 1.5 General

  • Sponsoring Association Committee:
    Labor & Employment, Tracey Salmon-Smith, Chair

    Sponsorship Opportunities are Available! Please Contact:
    Yelena Balashchenko, Manager, Business Development & Sponsorships | (212) 382-6608 |