On December 8, 2022, three New York City Council Members proposed a workplace-related bill that would essentially do away with the concept of “at will” employment in the Big Apple. Suffice it to say, the proposed bill would, if passed, be an absolute game changer for businesses in one of the country’s largest commercial markets.
Perhaps most notably, the Secure Jobs Act (the Act) provides that a New York City employee who has completed their employer’s probation period, if there is one, could not be fired except for “just cause or a bona fide economic reason,” which the employer would bear the burden of proving. In assessing whether an employee has been discharged for just cause, the Act would require consideration of no less than seven specific factors, including whether (i) the employee know or should have known of the employer’s policy, rule, practice, or performance standard that is the basis for the discharge, (ii) the employer disciplined or discharged the employee based on that employee’s individual performance, irrespective of the performance of other employees, and (iii) the employer’s policy, rule, practice, or performance standard, including the utilization of progressive discipline, was reasonable and applied consistently.
The Act then goes on to state that, except where termination is due to an egregious failure by the employee to perform their duties, or for egregious misconduct, a termination would not be considered to be based on just cause unless the employer had first utilized progressive discipline with respect to the employee. And even then, the employer could only rely on such progressive discipline if the discipline was issued within one year prior to the purported termination and the employer had a written policy regarding progressive discipline that was provided to the employee.
Additionally, except in instances where the employment termination is for an egregious failure by the employee to perform their duties, or for egregious misconduct, an employer would be required provide 14 days’ prior notice of any discharge for just cause or a bona fide economic reason. Further, within five days following such notice, the Act would require the employer to provide a written explanation of the precise reasons for the employee’s discharge. (This would include providing a copy of any materials, personnel records, data, or assessments that the employer used to make the discharge decision.)
Failure to timely and properly provide such written explanation would have drastic consequences. First, in determining whether an employer had just cause for discharge, a court would not be permitted to consider any reasons not included in such explanation. And second, if an employer failed to timely provide such explanation, then the employee’s discharge would automatically not be deemed to be based on just cause.
In short, the Act, which also includes cumbersome provisions relating to electronic monitoring of employees, has the potential, if passed, to change the entire business landscape in New York City. Although the Act was only just introduced, and Mayor Eric Adams has not signaled whether he supports the bill, every Big Apple employer will want to pay close attention to its progression before the legislature.