1. When can I fire an employee?
Under New York law, employment is at-will unless there is a written agreement to the contrary. That is, an employer may terminate an employee, with or without notice for any reason or no reason, except an employer may not violate the anti-discrimination laws. Nowadays more employees are suing their employers alleging discrimination. In simple terms, the federal Anti-Discrimination statutes (Title VII, Age Discrimination in Employment Act, American with Disabilities Act, etc.) and The New York State Human Rights Law and New York City Human Rights Law prohibit an adverse employment action (termination, demotion, etc.) based on race, gender, age, disability and religion. The federal statutes generally apply to employers with 15 or more employees, the state statute to employers with 4 or more employees and the City’s to employers with 1 or more employees. Courts will also look at your policies and employment manuals to see if there are any practices or policies that are implied. It is always good policy to give progressive discipline to your employees when appropriate, to advise them of performance deficiencies and to document your reasons for a termination.
2. What if a pregnant employee refuses to do her duties?
Unless there is a medically documented reason for the refusal, an employer may discipline and even terminate an employee who refuses to do her job functions. Having said that, it is always best to proceed cautiously when dealing with a pregnant employee who is protected under many employment statutes. A pregnant employee must be treated in the same manner as other employees with a disability. If there is a medical disability (pregnancy would be considered a disability) an employer is required to reasonably accommodate the employee. Moreover, it is illegal to discharge or discipline an employee based on the pregnancy. Generally, however, pregnancy alone ordinarily does not disable an employee for performing basic functions in a dental office. X-rays, for example, have not been considered an inherently hazardous activity for pregnant women, assuming it is in compliance with state and local laws. As far as leave, you must treat the employee as you do others with a disability. Most dental offices are not subject to the Family and Medical Leave Act’s requirement of up to 12 weeks unpaid leave, because that Act only applies to office with 50 or more employees. The New York Workers Compensation Law does apply to office with one or more employees and provides that disabilities relating to pregnancy qualify for workers compensation disability benefits. As with other employees, it is always wise to document any performance deficiencies.
3. Are Covenants Not To Compete Enforceable?
Courts in New York State have enforced covenants not to compete to the extent that they are reasonable in scope, geography, and duration. Courts, however, do not imply such agreements. Thus, if you have employed a dentist who leaves your office and then competes against you, you do not have much recourse legally or ethically. You may be able to restrict a former employee or partner from using proprietary information wrongfully taken from your office, but in the absence of a written non-compete, you may not restrict them from competing against you. If you are entering into an employment relationship with another dentist, you may want to consider having a covenant not to compete.