I am a restaurant owner, and as bad as it sounds, I have had several customers privately tell me that they do not like one of my waiters because they make them feel uncomfortable. It is mostly an older crowd who has the problem with him. He is African American, and he is a great waiter, but I don't know if it is good for business to keep him on. Would I be within my rights firing him because NY is an at will state? If I need a reason I can just say he was bad for business correct?
he makes them*
Let me answer your question this way, I am an experienced employment discrimination attorney who only represents employees. If you took the action that you propose and the particular employee that you terminated came to me to file a discrimination lawsuit, I would take the case in a New York minute.
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Criminal Defense Attorney
You don't have to give a reason but it sounds like you are firing him due to race and that is illegal. He could sue you.
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Divorce / Separation Lawyer
If he us a good waiter, then yiu do not have a valid reason to fire a waiter. If the customers give you a reason to fire him, them go over the reason with s local employment lawyer before you do anything. If they state it is his race, then do not fire him!
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Administrative Law Lawyer
You do NOT need to give a reason when terminating an employee.
But that is a very different issue than whether in this specific case you have a legal right to terminate this employee. Given that the law allows employers almost unlimited rights to terminate employees who are not represented by a union, the fact that multiple attorneys here have expressed doubts about your rights in this circumstance should give you pause.
Still, your post does not explicitly state that the reasons for the customers objections to this employee are based on his race.
Given these competing considerations, it would be most unwise of you to proceed to terminate this employee without a specific consultation with a local employment attorney. A skilled and experienced employment attorney can elicit all of the relevant and operative facts and provide a comprehensive legal analysis in context that will enable a sound and defensible result. This consultation may cost you a few hundred dollars. That is vastly less money than even beginning the first stages of defending against an unlawful termination claim. Moreover, that consultation will leave you well informed and capable of sound decision-making the next time you have to consider terminating an employee -- a good bargain.
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All of my colleagues give you good advice. I think that Mr. Kim's advice was particularly insightful (that if you fire the waiter, Mr. Kim would be happy to represent him in a discrimination suit).
Look, let me call it as I see it: You tell us only three things about this employee -- (1) He is black; (2) He is "a great waiter"; and (3) Some of the older patrons of your restaurant are, for unknown reasons, vaguely "uncomfortable" with him. I doubt that the reason for their discomfort is because they are intimidated by the fact that he is such a great waiter. That leaves the fact that he is black.
I don't think you can safely fire him. But if you do, please be kind enough to give him my name and telephone number.
One other thing. Let me tell you something about racism. A fair-minded person who fires an exemplary employee due to other customers' racism is, by definition, a racist.
Good luck to you. And to your great waiter.
Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as rendering legal advice involves the ability of the attorney to ask appropriate questions of the person seeking such advice and to thus gather appropriate information. In addition, an attorney/client relationship is formed only by specific agreement. The purpose of this answer is to provide the questioner with general information, not to outline specific legal rights and remedies.