New York City Enacts “Just Cause” Termination Ordinance for Fast-Food Workers
New York City “Just Cause” Termination
In mid-December 2020, the New York City Council passed a city ordinance protecting fast-food workers from being fired without cause. See news report here. The so-called “just cause termination” ordinance may be the wave of the future for employee rights, soon to be expanded to other categories of workers in NYC and, maybe, soon to be enacted in other cities and states. Mayor de Blasio is expected to sign the legislation which will go into effect in mid-2021.
The ordinance prohibits employers in the fast-food industry from firing or “substantially reducing” a worker’s hours without “just cause” unless the employer has a “bona fide economic reason” for the firing or hour reduction (such as the closing the restaurant location). “Just cause” is defined under the ordinance as:
- A worker’s “demonstrated misconduct” or
- A worker’s “poor performance,” which must also be “demonstrably and materially harmful to the fast food employer’s legitimate business interests”
In order to be allowed to fire an employee for “just cause” or to reduce hours, an employer must also show that
- The worker was provided adequate training with respect to the employer’s policies and rules
- The employer’s policies and rules were reasonable
- The policies rules were applied consistently
- The employer conducted an investigation
- The worker knew or should have known that his or her actions violated the policy or rule in question and
- The worker did, in fact, violate the policy or rule
Further, the ordinance requires that, before workers can be fired (or their hours reduced), fast-food industry employers must engage in “progressive discipline.” This means, in effect, that workers will have several chances to improve their performance after instances of low or unsatisfactory performance and that the discipline after each instance must be increased gradually, step-by-step, with respect to the severity of the discipline. Fast-food employers are required to create and implement their progressive discipline policies in writing and to provide notice of the policies to their employees. Further, in effect, the “progressive-ness” of the discipline “resets” every 12 months since the ordinance prohibits use of a previous discipline that is more than one year in the past.
Finally, within five days, fast-food employers must provide a written statement of the “precise reason” (or reasons) why a worker is fired or given reduced hours. If a worker challenges the firing or work reduction, at the proceeding to resolve the challenge — a court trial or arbitration — the employer may not claim or rely on or offer a different reason or other reasons that would justify the firing or reduction in hours.
Any worker whose rights under the ordinance have been violated may file a civil lawsuit in New York state court or, starting in 2022, may file for arbitration in a forum to be established by the city. Class actions and class arbitrations are specifically permitted by the ordinance. Employers who are found guilty of violating the ordinance can be ordered to:
- Reinstate the worker, reverse the discipline imposed and/or take other remedial actions
- Pay any and all back pay
- Pay schedule shift premiums pursuant to the city’s predictive scheduling ordinance
- Pay money damages for shifts or hours lost because of the violation and other compensatory damages
- Pay the workers’ attorneys’ fees and costs
- Pay statutory damages of $500 per violation
- Pay administration costs to the city if the matter is handled as an arbitration
- And more
As noted, New York City’s ordinance may be the first of many such laws. Workers have a right to work, a right to be secure in their jobs and a right to be free from arbitrary firings and reduction of their hours.
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