New York City’s Fair Workweek Law requires that covered New York City fast food industry employers (1) provide “just cause” protection from discharge and significant reductions in hours for fast food employees (2) require employers to engage in seniority-based reductions and rehiring if staff reductions are due to bona fide economic reasons and (3) provide for a private right of action.
“Just Cause” Protections
Under this legislation, following completion of a probationary period of up to 30 days, covered fast food employers may not discharge, reduce the hours of employees by 15% of their regular schedule or by 15% of any weekly work schedule, or indefinitely suspend employees (absent “Bona Fide Economic Concerns”) without “Just Cause.”
“Just Cause” is defined as the employee’s failure to satisfactorily perform his/her job duties or misconduct that is demonstrably and materially harmful to the fast food employer’s legitimate business interests.” There are a stringent set of factors that will be used to determine whether the discharge or reduction in hours was indeed based on “Just Cause.” Factors include:
- Whether the fast food employee knew or should have known of the fast food employer’s policy, rule, or practice that is the basis for progressive discipline or discharge;
- Whether the food fast employer provided relevant and adequate training to the fast food employee;
- Whether the fast food employer’s policy, rule, or practice, including the utilization of progressive discipline, was reasonable and applied consistently;
- Whether the fast food employer undertook a fair and objective investigation into the job performance or misconduct; and
- Whether the fast food employee violated the policy, rule, or practice or committed the misconduct that is the basis for progressive discipline or discharge.
“Progressive Discipline” is defined as a “disciplinary system that provides for a graduated range of reasonable responses to a fast food employee’s failure to satisfactorily perform such fast food employee’s job duties, with the disciplinary measures ranging from mild to severe, depending on the frequency and degree of the failure.” The law expressly provides: “unless termination is for an egregious failure by the employee to perform their duties, or for egregious misconduct, a termination shall not be considered based on just cause unless (1) the fast food employer has utilized progressive discipline; provided, however, that the fast food employer may not rely on discipline issued more than one year before the purported just cause termination, and (2) the fast food employer had a written policy on progressive discipline in effect at the fast food establishment and that was provided to the fast food employee.”
Further, the legislation requires that within five days of discharging a fast food employee, the employer must provide a written explanation of the “precise reasons” for the action and this explanation will be the employer’s sole basis to support its termination decision if challenged.
Seniority-Based Economic Reductions
This legislation also requires covered fast food employers discharging, reducing hours by 15% or more, or indefinitely suspending employees on economic grounds to articulate a “Bona Fide Economic Reason” for the discharge.
A “Bona Fide Economic Reason” is defined as “the full or partial closing of operations or technological or organizational changes to the business in response to a reduction in volume of production, sales, or profit.” Where a covered fast food employer’s workforce reduction is based on a “Bona Fide Economic Reason,” covered employers must lay off employees in reverse Seniority order. In other words, the more senior employees will be at the bottom of an employer’s list when it comes to deciding who gets laid off first. A covered employer’s business records must show that the closing, or technological or reorganizational changes, are in response to a reduction in volume of production, sales, or profit. Covered fast food employers must make “reasonable efforts to offer reinstatement or restore hours to any fast food employee discharged based on a bona fide economic reason within the previous 12 months.”.
Recourse for Aggrieved Fast Food Employees
Aggrieved fast food employees who were allegedly subjected to a prohibited job action without “Just Cause” or a properly implemented seniority-based action for a “Bona Fide Economic Reason” have the right to bring a civil action in court or, after January 1, 2022, file an arbitration proceeding.
Federal Court Judge Denise Cote recently upheld the law stating “The City’s Wrongful Discharge Law is a validly enacted minimum labor standard. The law is...aimed at promoting job stability for hourly employees in a particular sector — the fast food restaurant industry,” Cote wrote.
Call Schwartz Perry & Heller if you would like to discuss your rights under New York City’s Fair Workweek Law, and to see if we can help you stand up for your rights.