Employment law is much more than litigation. Whether your concern is over noncompetition provisions, a severance agreement, or even employment discrimination, most people do not race to a courthouse.


  1. Litigation is expensive
  2. Litigation is time-consuming
  3. Litigation is stressful
  4. Litigation is uncertain
  5. Litigation is public

There are other choices including:

1. Retaining an employment lawyer in the background (the strongest claims often involve employees giving best faith efforts to comply with unachievable performance improvement plans documenting pretext for discrimination)

2. Filing charges or a complaint with an administrative agency (the legislature had good cause to require administrative exhaustion with the EEOC pre-suit)

3. Alternative dispute resolution including mediation or conciliation

4. Informal negotiation

5. Serving opposing counsel a draft complaint or a charge pre-filing

Even if you agreed to an alternative process such as arbitration your employer might think twice about enforcing that requirement. Although courts have been enforcing private contracts, including arbitration agreements, employers might not get the quicker, less costly results they expected.

Both the New York State Division of Human Rights and the Equal Employment Opportunity Commission investigate complaints of employment discrimination. The Division does so to protect all New Yorkers from discriminatory employment practices. The EEOC investigates charges of employees who allege that federal laws were not followed at workplaces across the country.

All government agencies are swamped with work. At the state level, the Division employs in-house attorneys who represent all New Yorkers. They also permit private counsel to represent employees and employers. But doing so does not mean that the agencies are not concerned with discrimination at work, especially if it is systemic and widespread or has become a way of doing business.

Employers have attempted to avoid government scrutiny for years. One way of doing so was requiring employees to sign private arbitration agreements as a condition of employment. If an employee alleged discrimination, a quicker, final, binding decision would be made by an arbitrator. No appeals.

But this strategy does not always work.

Federal courts understand that our government and its agencies play a vital role in protecting employees from unlawful employment practices. These agencies have existed since the mid 1960s. Their purpose continues to be employee protection.

And those agencies were created by carefully drafted legislation. The agencies’ powers are not unlimited but they may exercise prosecutorial-like discretion in order to gather information and facts.

The United States District Court for the Western District of New York entered an interesting order addressing the power of New York’s Division of Human Rights.

Lynda Derfert applied for a job. Charter Communications made her a conditional offer. It then discovered Ms. Derfert’s misdemeanor and conviction record and rescinded the offer. Ms. Derfert filed a complaint with the Division of Human Rights. Charter insisted that Ms. Derfert had waived her right to file a complaint when she signed Charter’s employment application. The application required her to agree to resolve disputes in arbitration. When Ms. Derfert refused to withdraw her complaint Charter sued her in federal court. The Division of Human Rights intervened since it intended to pursue Ms. Derfert’s complaint with or without her.

The court carefully analyzed EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). That case involved a government agency which advocates for employees but does not employ hearing officers or administrative judges who assess witness credibility and find facts to recommend decisions. It distinguished Derfert’s case from Joule, Inc. v. Simmons, 944 N.E.2d 143 (Mass. 2011) because Massachusetts’ administrative process requires a discriminated party to advance a claim in her own name while New York’s Executive Law expressly permits the Division to proceed with or without the complainant. A link to some of its decisions:


The case is Charter v. Derfert and NYS Division of Human Rights, No. 20 Civ. 915 (W.D.N.Y. March 10, 2021). Cases like this make perfect sense when we all search for truth. And government agencies, including our courts, play vital roles in getting to the truth. Arbitrators serve worthy purposes but they can not advance the interests of an entire states’ citizens as a state agency is empowered to do.

Ms. Derfert may proceed to arbitration but what will the purpose be when the employer will be unable to avoid a state agency’s scrutiny by insisting on arbitration. Maybe some employers will realize that not all arbitration is a good idea nor will it serve the employer’s intended, but often hidden, motives.

Case evaluation comes first. Was an employer motivated by discriminatory animus? What facts support discrimination? What are best case scenario damages? And what will the employer’s stopper witness say? Meaning, how will we overcome a potentially strong, legitimate, non-discriminatory, maybe just one, reason for a termination or forced resignation from employment?

The facts of every employment law claim unfold over time. It’s not unusual for a plausible theory of recovery to change as well. Witnesses who we were confident would be strong were the opposite and weaker ones may turn out stronger.

Urba Law PLLC limits its practice to employment law across New York State. Searching for which options best fit employees and small employers. Over 20 years experience on both sides brings a reality check to every employment matter.

Helping with severance and noncompetition agreements.

Recovering unpaid overtime wages in federal courts across New York State.

Fighting for harassed and discriminated employees.

Bully employers threaten, intimidate, or embarrass employees because of their sex, race, national origin, religion, disability or some other protected class to which an employee belongs. We are all members of at least one protected class of employee. In New York, we are all protected against discrimination because of age. No New York employer may take action against any employee because of their age, young or older.

Serving Buffalo to the Canadian Border to New York City and everywhere in between.


  • Healthcare and DOE-licensed professionals
  • Financial services experts
  • Teachers, professors, and administrators
  • Local and state government employees
  • Essential workers in the food and transportation industries.

Zoom, virtual conferences for clients and most court proceedings.

Over 30 years of legal experience and admitted to all New York federal district courts:

2014 in SDNY

2015 in EDNY

2020 in NDNY and WDNY

  • Severance agreement advice – flat rates
  • Noncompetition agreement advice – flat rates
  • Race Discrimination litigation – contingent or hourly
  • Gender Discrimination litigation – contingent or hourly
  • LGBTQ Workplace Discrimination litigation – contingent or hourly
  • Disability or Perceived Disability Discrimination litigation – contingent or hourly
  • Wage and Hour Litigation – misclassified as salaried or exempt – contingent or hourly

Initial phone conferences are no charge.

Let’s talk about your facts, causes of action, and damages for employment law matters which happened in New York. 

View over 50 YouTube videos on a channel called Employment Law Reality Check. Jonas talks about common scenarios here:

Video transcript:

I’m Jonas Urba, a New York employment lawyer, here with Employment Law Reality Check. You may be asking yourself was I discriminated when I lost my job? Many times someone will call me and they’re sure it’s age discrimination and it turns out to be completely different. What everybody needs to understand is that we need to speak with someone for a period of time to get essential, strong facts from the employee. Sometimes you may think it’s some reason you got terminated, lost your job, and it turns out to be the exact opposite. Age discrimination is a great example. Often times it becomes disability or perceived disability or an associational discrimination claim or a wage claim for example, and it’s nothing to do with age. But until you call some employment lawyers and you talk for a while, you don’t even have to pay nowadays. You don’t have to pay the $400 or $500 dollars for an initial office consultation because most attorneys will speak to you readily over the phone. And if you don’t have a claim you’ll probably know as well as the attorney will know very quickly. We used to charge people $1500 to draft a demand letter but there’s no reason to do that now if your facts are strong and you’ve got enough of a claim based on some theory of discrimination. A lawyer will spend the time to draft an adequate complaint or charging document on your behalf and they might do it on a contingent fee basis. But until you actually call some employment lawyers and you talk to them for some period of time, you’re not gonna know and you may be wondering to yourself should I have signed that settlement agreement or that severance package? Or should I call an attorney before I do that? So before you sign something, you’re only gonna have 7 days to rescind or revoke if you do sign. Before you do that call some employment lawyers. Call me. I’m Jonas Urba, I serve the entire state of New York, and I can be reached at (212) 731-4776. Attorney Advertising.

New York State’s Division of Human Rights is handling complaints remotely across New York State. A discrimination complaint:

  • An employment lawyer electronically files a complaint which is dual-filed with the EEOC. Exhibits are usually attached.
  • The employer or former employer electronically files its statement of position. Exhibits are usually attached.
  • Complainant’s lawyer files a rebuttal to the employer’s statement of position. More exhibits are usually attached.
  • The Division of Human Rights may schedule a conference with the complainant and employer. During that conference the Division might request documents from both employee and employer.
  • Even if no conference is held, the Division of Human Rights may request documents from the complainant or employer, the respondent.
  • Employers or respondents should respond to the Division’s request for documents. Employers have been known to hold back on document production or hide important documents. 
  • Complainant’s lawyers carefully examine the employer’s documents, identify obviously omitted ones, and file a supplemental rebuttal to the produced documents. More exhibits may be attached.
  • The Division of Human Rights will determine whether probable cause exists to support  an employee’s complaint. If no probable cause is found the complaint is dismissed. A complainant or an employee then has to appeal that determination in the state courts.
  • If probable cause is found the DHR will explore conciliation. Do the parties have interest in resolution? Has the complainant calculated damages? Is the calculation based on facts and law or is it unrealistic? These are not wild guesses. They must be based on the facts which might be proven were the complaint tried. 
  • A 2-day remote hearing date is set.
  • Adjournments and continuances are granted for good cause. Expect them.
  • No employer can be forced to settle any employment discrimination complaint.
  • The complaint, facts, and exhibits must be strong.
  • If the parties agree to resolution a general release and waiver will be prepared.
  • Either side’s employment lawyer will draft an agreement. Both sides will negotiate the terms.
  • Assuming agreement and signature, the complainant has 7 days to rescind or revoke it.
  • Any payments will be held in escrow pending administrative dismissal.
  • Federal complaints are much more involved.
  • Either process can take years. 6 months is speedy. Only resolution or settlement is not subject to potential years of hearings, trials, or appeals. Both sides will feel bad. The employee accepts a fraction of what a best case scenario would be. The employer is unhappy that it needed to pay anything.

What is “wrongful termination”? It happens when:

  • A private employment agreement for a specific term is broken or
  • A collective employment agreement, known as a collective bargaining agreement, is broken and an employee grieves under its terms or
  • Title VII of the Civil Rights Act, the Americans with Disabilities Act, New York State’s Human Rights Law, or other workplace, anti-discrimination laws are broken or
  • An employee is not paid according to either the Fair Labor Standards Act, New York’s Labor Laws, the Equal Pay Act, or other laws individually or collectively.

Urba Law PLLC handles exclusively employment law matters across all of New York State. The firm does nothing but employment law. We try to keep you on the job if possible. If you have been unlawfully passed over for promotion  because of your race, sex, identification, or disability we analyze those facts as well. Being forced to quit is rare and almost never recommended.

Caring, creative employment lawyers can help you if you reach out as soon as possible.

Are we right for you? Are you right for us? The firm rarely substitutes for other lawyers who started cases. It’s why you need to establish rapport with a competent, caring employment law firm before retaining it. Choose lawyers who listen carefully and understand your facts.

Beginning in 2019, New York’s Human Rights Law became stronger. Employees across the state no longer have to put up with hostile workplaces or discrimination. Make sure your employment lawyer takes time up front.




Urba Law PLLC, 200 Park Ave., Suite 1700, New York, NY 10166

(212) 731-4776 – Initial phone conferences are no charge. Although the bulk of Urba Law PLLC’s clients are employees the firm also represents small employers facing discrimination claims which are sometimes frivolous. 

How does Choice of Law Affect Restrictive Covenants?

Restrictive covenants control noncompetition, non-solicitation, and confidentiality. More employers include restrictions as parts of their terms and conditions for working. New York’s history favors individuals ordering and deciding their own interests by contract. It’s part of our public policy  (Bloomfield v Bloomfield, 97 N.Y.2d 188, 193, 764 N.E.2d 950, 738 N.Y.S.2d 650). But there are limits.

Employers may not overreach. There has to be some restraint. Employers may not use coercive bargaining power. But that does not require equal bargaining power either. Employers can not engage in anti-competitive misconduct. Courts examine whether employers are protecting legitimate business interests. Are they acting in good faith? Or is an employer violating reasonable standards of fair dealing?

Employers may not choose laws which are “truly obnoxious” to the public policy of New York. Florida’s law on restrictive covenants meets the definition (Brown & Brown, Inc. v Johnson, 25 N.Y.3d 364, 34 N.E.3d 357, 12 N.Y.S.3d 606).  Employers in Florida have a low burden to show that they have a legitimate business interest in need of protection. Once they make that prima facie showing the burden of proof shifts to the employee. Florida courts focus on the employer’s interests. New York’s focus is on the employee.

In New York the burden of proof is on the employer. 


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