Fast food workers have long complained that they are often fired for seemingly trivial and non-performance-related reasons and that they lack any semblance of job protection. These concerns have come to the forefront during the COVID-19 pandemic, as fast food workers have become essential employees who have continued working even as various municipalities, particularly large metropolitan areas like New York City, went into lockdown. On January 5, 2021, New York City Mayor Bill de Blasio signed two new bills into law that address these concerns, notably by granting fast food workers “just cause” protections. Estimates suggest that these two new laws will affect nearly 70,000 fast food workers in New York City.
The new laws prohibit fast food employers from firing, laying off, or substantially reducing a worker’s hours without providing “just cause” or bona fide economic reasons. The legislation defines “just cause” as the “failure to satisfactorily perform job duties or engaging in misconduct that is harmful to the fast food employer’s legitimate business interests.” The legislation defines a bona fide economic reason 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.” The laws consider a reduction to be substantial if a worker’s hours are reduced by more than 15 percent of their regular schedule or any weekly work schedule.
Fast food employers will also have to give a written explanation of the precise reasons for the decision within five days of discharge. (As such, we caution fast food employers to consider—and document—the reasons for their employment decisions carefully). The legislation also allows any fast food employee to challenge a termination decision by either filing a claim in court or by filing an arbitration, even if there is no arbitration agreement between the employer and employee. However, the “just cause” requirement does not apply to employees who are still within a 30-day probationary period.
Additionally, under the new bills, if a fast food employer lays off workers, they must do so based on a bona fide economic reason, and such layoffs must proceed in reverse order of seniority. Further, a fast food employer must rehire the laid off employees before hiring any new employees for a one-year period after the layoffs.
Notably, New York City is the first place in the country where fast food workers will no longer be considered “at-will” employees. Other localities may follow suit.
The new legislation only applies to fast food establishments with 30 or more stores. All such New York City fast food employers should be aware of this new legislation, which will go into effect on July 4, 2021.
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