A New York City Council member recently proposed an amendment to the New York City Human Rights Law (NYCHRL) that would restrict fast food establishments from firing employees without “just cause.” The purported reason for this amendment is to provide more job security to fast food workers.
The bill defines “just cause” as an “employee’s failure to satisfactorily perform job duties or misconduct that is demonstrably and materially harmful” to the business. If enacted, the proposed bill would require that a termination for just cause be the result of the fast food establishment’s use of “progressive discipline” within a one-year window from the date of the employee’s termination. “Progressive discipline” refers to “a disciplinary system that provides a graduated range of reasonable responses” to an employee’s failure to perform their job satisfactorily. Any discipline issued to the employee outside of the one-year timeframe would not be considered a part of the progressive discipline supporting a just cause termination. The bill would also require employers to provide the employee with a final, written explanation of the specific reasons for their termination. However, these protections would not extend to any fast food employee (1) covered by a collective bargaining agreement or (2) within their probationary period (30 days from date of hire).
The proposed bill provides guidance for enforcement of the new provisions, requiring administrative fact finders and courts to consider whether:
- The employee knew or should have known of the fast food employer’s policy, rule or practice;
- The fast food employer provided relevant and adequate training to the employee;
- The fast food employer’s policy, rule or practice was reasonable and applied consistently; and
- The fast food employer undertook a fair and objective investigation.
The bill also provides guidelines for arbitrating and mediating violations of these laws.
Violations of the NYCHRL include the risk of:
- Civil penalties of up to $250,000
- Requiring the complainant to be hired
- Requiring reinstatement of the complainant following termination
- Requiring a promotion of the complainant
- Back pay
- Front pay
- Compensatory damages
- Punitive damages
- Attorney’s fees and costs.
Although the proposed bill is not yet enacted as law, fast food employers should monitor its progress. If you have any questions or concerns about this proposal, Reed Smith’s experienced Labor and Employment Group is ready to speak with you. For more information regarding this law and the accompanying guidance, please contact your Reed Smith attorney.