Retaliation Claim Based On Unemployment Filing Survives

A recent decision, Delucia v. Abbondandolo, Index No. 005793-10 (N.Y. Sup. Ct. Nassau Cty. March 11, 2013), held that, in the circumstances of that case, it was unlawful to fire an employee because they file for unemployment benefits.

After plaintiff Gina Delucia was let go by a non-party employer, she filed for unemployment benefits.  The Department of Labor began questioning her status at her then-concurrent employer (defendants), and reached the conclusion that – contrary to defendants’ contention – plaintiff was an “employee” rather than a 1099 independent contractor.   After this defendants reduced plaintiff’s hours and fired her.

Plaintiff sued under New York Labor Law § 215(1)(a)(iii), which says (in relevant part) that:  “No employer … shall discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee … because such employee has caused to be instituted … a proceeding under or related to this chapter.”  This includes, according to the court, filing for unemployment benefits.

Defendants moved for summary judgment, and lost.  They were not entitled to this remedy in light of factual questions relating to the circumstances leading up to the plaintiff’s termination and issues of credibility.  In addition the documentary evidence did not establish as a matter of law that plaintiff’s termination was (as defendants argued) due to “economic necessity.”

The court also rejected defendants’ argument that “plaintiff’s status as an at will employee fatally compromises the viability of the underlying claim sounding in retaliation”, citing Court of Appeals precedent that Labor Law § 215 operates as an exception to the at-will employment doctrine.

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