NYC Council May Ban "At-Will" Firings in Fast Food Industry

As a general rule, private employment in New York State is considered “at-will.” This means that an employer can fire an employee for just about any reason, or even no reason at all, except in situations expressly forbidden by law. For example, you cannot fire someone due to their race, as that would violate federal, state, and local laws against discrimination.

Even when an employer fires someone for discriminatory reasons, it is often difficult for the employee to prove that is what happened. After all, few managers say things like, “I'm firing you because you're Hispanic.” Instead, management may invent a frivolous but seemingly non-discriminatory reason to terminate the employee. The burden is then on the employee to try and prove discrimination, which is often impossible.

Bill Would Require Employers to Use Progressive Discipline, Give Written Reasons for Termination

Some New York City Council members want to “flip the script,” however, at least with respect to fast food workers. In February, Council Member Brad S. Lander of Brooklyn introduced a bill to expressly forbid certain “fast food employers” from terminating employees without cause. The bill, currently known as Int. 1415-2019, would establish new legal protections for such employees.

As introduced, Int. 1415-2019 states that following a 30-day probation period, it is considered wrongful discharge to terminate an employee without “just cause.” In this context, just cause is limited to an employee's “failure to satisfactorily perform job duties or misconduct that is demonstrably and materially harmful to the fast food employer’s legitimate business interests.”

The bill would further require fast food employers to implement a system of “progressive discipline” to determine whether just cause exists. In other words, the employer must have written disciplinary policies that use a “graduated range of reasonable responses” to an employee's failure to perform their duties. However, the bill would not prohibit an employer from “immediately” firing an employee for a “sufficiently egregious failure or misconduct” that would otherwise qualify as just cause.

As part of the disciplinary and termination process, Int. 1415-2019 would also require the employer to “promptly provide a written explanation” to the employee of the reasons for their termination. If the employee believes they were fired in violation of the just-cause rule, they would be allowed to bring a private lawsuit to recover damages.

As Council Member Lander recently told the New York Times, the bill is “not saying an employer has to keep a person who’s not doing their job well.” He noted that recent surveys of the restaurant industry indicated “about two-thirds of workers fired from fast-food jobs said they had been fired without being given a reason.”

Get Advice From a New York Wrongful Termination Lawyer

As of this writing, Int. 1415-2019 has yet to be formally considered by the City Council. But the push for this legislation demonstrates the growing sentiments toward expanding worker protection from acts of wrongful termination. If you have any questions or concerns about the law in this area and would like advice from an experienced New York City employment attorney, contact the Nisar Law Group, P.C., today.

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