By: Chantal N. Guerriero, Esq. and Ty Hyderally, Esq.
On December 17, 2020, amendments to New York’s Fair Work Practices Code (the “Code”) were passed which will significantly increase employment protections for employees in the fast food industry in New York. Specifically, under certain circumstances, the amendments will protect such employees from being terminated without “just cause.” In turn, these employees will no longer be considered to be employees at will.
To be an employee “at-will,” in essence means that an employer may use their discretion to terminate employees for any legitimate reason, so long as it is not discriminatory or retaliatory. This allowance means that employers do not have to present “just cause” in order to terminate employees.
In contrast, the new law will restrict employers from being able to terminate employees without just cause, once such employees have completed a thirty-day probationary period. The amendments define “just cause” as “failure to satisfactorily perform job duties or misconduct that is demonstrably and materially harmful to the fast food employer’s legitimate business interests.” Further, where an employer is terminated for “just cause,” the employer will have the burden of demonstrating this through in a number of ways, including that:
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.
N.Y.C. Admin. Code § 20-1271, et. seq.
The amendments also impose that, unless an employee’s termination is the result of egregious misconduct, progressive discipline is to be utilized and enforced prior to an employee’s termination for “just cause.” Further, within five (5) days of the discharge, employers will be required to provide a written explanation of the precise reason for their decision to discharge the employee. Last, where an employer is found to have violated the Code, the terminated employee may be reinstated or have their work hours restored, in addition to receiving back pay.
The amendments are expected to go into effect within 180 days of January 5, 2021, and signal the continued progress towards increased employee protections in New York.
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