In January, the Fair Workweek Law was amended, prohibiting fast-food restaurants from firing workers or removing shifts without first going through progressive discipline measures or coaching employees to better performance standards, except in cases of egregious misconduct. Now, a lawsuit brought forward by the Restaurant Law Center and New York State Restaurant Association says that the law requiring employers to have just-cause for termination should be overturned.
The just-cause provision is set to take effect July 5; however, many terms of the amended law remain undefined. Further, the amended law is said to breach the Federal Arbitration Act and violates the Commerce Clause of the U.S. Constitution, while New York’s common-law at-will rule preempts the law.
However, despite the in-progress lawsuit, some fast-food employers in New York City have already begun to comply with the law in the event it does take full effect next week.
Compliance efforts include:
- Creating progressive discipline policies;
- New policies and procedures for training, investigation, and disciplinary issues;
- Hiring new employees to ensure compliance;
- Adopting new records and forms;
- New record-keeping procedures;
- Providing managers and employees with information on their rights and responsibilities.
What the NYC Just Cause Law Requires
Should the law take effect, it will eliminate at-will employment for fast-food employers with at least one location in the city that is part of a chain of at least 30 locations nationwide, according to SHRM.
Its creation was to extend protections to non-unionized fast-food workers that would otherwise exist in unions.
In addition, the law requires employers to provide progressive discipline after an investigation of the claims. If challenged, the law presumes that the employer’s action was unlawful and places the burden on the employer to prove that there was just cause to support the discharge or hours reduction.
Further, fast-food employers are prohibited from laying off workers unless they can provide bona fide economic reasons. However, in cases of egregious misconduct, these rules do not apply to employees who are in a probationary period, which ends 30 days after the start of their employment.
What is egregious misconduct?
One of the main complaints of the just clause law is that so many terms remain vague, including what is and is not egregious misconduct. In general, it is believed to include actions like theft, unlawful harassment, and violence in the workplace but not insubordination.
What discipline is permitted?
Progressive discipline is supposed to be the go-to guide for employment misconduct and investigation; however, what that means is complex. In general, progressive discipline uses graduated steps for dealing with problems related to conduct or performance that does not meet clearly defined standards and policies.
Because of this, employers should be developing disciplinary documents that include the rationale behind the reduction of hours and termination.
While we still have days before the law is set to take effect, employees must be vigilant in knowing what rights may become available to them.
Has your employer violated the just cause provision? Contact the BKL Lawyers.
As the July 5th deadline for the just cause provision nears, NYC fast-food employees should remain mindful of their rights and responsibilities should they face wrongful termination or disciplinary action.
If you have questions about your New York employee rights, contact the BKL Lawyers at Brown Kwon & Lam today.