NYC GIVES FAST FOOD WORKERS EMPLOYMENT RIGHTS

 

With an at-will employment, New York "neither recognizes a tort of wrongful discharge nor requires good faith in an at-will employment relationship" (Matter of De Petris v Union Settlement Assn., 86 NY2d 406, 410 [1995], citing Murphy v American Home Prods. Corp., 58 NY2d 293 [1983]). The employer could discharge the employee for any reason, absent discrimination, etc.

But fast food workers in New York City now have new rights effective this summer. Earlier this month, the following was added to the NYC Administrative Code:

"§ 20-1272 Prohibition on wrongful discharge.

   a.   A fast food employer shall not discharge a fast food employee who has completed such employer’s probation period except for just cause or for a bona fide economic reason.

   b.   In determining whether a fast food employee has been discharged for just cause, the fact-finder shall consider, in addition to any other relevant factors, whether:

      1.   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;

      2.   The fast food employer provided relevant and adequate training to the fast food employee;

      3.   The fast food employer’s policy, rule or practice, including the utilization of progressive discipline, was reasonable and applied consistently;

      4.   The fast food employer undertook a fair and objective investigation into the job performance or misconduct; and

      5.   The fast food employee violated the policy, rule or practice or committed the misconduct that is the basis for progressive discipline or discharge.

   c.   Except where 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.

   d.   Within 5 days of discharging a fast food employee, the fast food employer shall provide a written explanation to the fast food employee of the precise reasons for their discharge. In determining whether a fast food employer had just cause for discharge, the fact-finder may not consider any reasons proffered by the fast food employer but not included in such written explanation provided to the fast food employee.

   e.   The fast food employer shall bear the burden of proving just cause or a bona fide economic reason by a preponderance of the evidence in any proceeding brought pursuant to this subchapter, subject to the rules of evidence as set forth in the civil practice law and rules or, where applicable, the common law.

   f.   In any action or proceeding brought pursuant to sections 20-1207, 20-1211, or 20-1273, if a fast food employer is found to have unlawfully discharged a fast food employee in violation of this subchapter the relief shall include an order to reinstate or restore the hours of the fast food employee, unless waived by the fast food employee, and, in any such proceeding brought pursuant to 20-1211 or 20-1273 where a fast food employer is found to have unlawfully discharged a fast food employee in violation of this subchapter, the fast food employer shall be ordered to pay the reasonable attorneys’ fees and costs of the fast food employee.

   g.   A discharge shall not be considered based on a bona fide economic reason unless supported by a fast food employer’s business records showing that the closing, or technological or reorganizational changes are in response to a reduction in volume of production, sales, or profit.

   h.   Discharges of fast food employees based on bona fide economic reason shall be done in reverse order of seniority in the fast food establishment where the discharge is to occur, so that employees with the greatest seniority shall be retained the longest and reinstated or restored hours first. In accordance with section 20-1241, a fast food employer shall make reasonable efforts to offer reinstatement or restoration of hours, as applicable, to any fast food employee discharged based on a bona fide economic reason within the previous twelve months, if any, before the fast food employer may offer or distribute shifts to other employees or hire any new fast food employees.

(L.L. 2021/002, 1/5/2021, eff. 7/4/2021; Am. L.L. 2021/001, 1/5/2021, eff. 7/4/2021)"