Revolutionary Employment Law Goes Into Effect in NYC
On July 4, 2021, New York City put into effect new rules for fast-food businesses. According to the city's Department of Consumer and Worker Protection, there must be:
No firing after a 30-day probation period without just cause.
No layoffs unless the employer is closing or reorganizing due to a downturn in business. In such cases, layoffs must be in reverse order of seniority and laid-off employees have first priority to work available shifts.
Written explanation from the employer for the firing, reduction of hours or layoff.
The new rules also modify the city's Fair Workweek Law, which has been in effect since Nov. 26, 2017: A "regular schedule" replaces the "good faith estimate" and expressly requires long-term scheduling stability. The hours in the regular schedule cannot be reduced by more than 15% without advance consent or a written request from the employee.
The definition of a fast-food establishment and its covered employees can be complex, but in brief includes any establishment:
1. That has as its primary purpose serving food or drink items;
2. Where patrons order or select items and pay before eating and such items may be consumed on the premises, taken out or delivered to the customer's location;
3. That offers limited service;
4. That is part of a chain; and
5. That is one of 30 or more establishments nationally.
Discipline Policies Must Change
According to the new rules, an employer should make sure employees know about the progressive discipline policy and employer responsibilities, which include the following rules:
The employer can only fire or reduce hours of fast-food employees who completed their probationary period for just cause or lay off employees for a bona fide economic reason, and employees fired for just cause have a right to go through progressive discipline first.
The employer must provide relevant and adequate training to employees.
The employer will conduct fair and reasonable investigations into employees’ job performance or misconduct.
The employer will apply policy reasonably and consistently across all covered employees.
The employer will give employees a written progressive discipline policy that states its effective date and whether it replaces any previously distributed policies.
The employer will provide a form so employees can sign and date that they received the written progressive discipline policy.
This is just a summary — employers that are subject to the new rules should get legal help to fully understand their new responsibilities. Meanwhile, on May 28, the Restaurant Law Center and New York State Restaurant Association filed a federal lawsuit to overturn the law. It's still pending and employers may want to watch for the results, but until any ruling to the contrary, the law is in effect.
Another Exception
Employment in the United States is generally at will, but there is at least one exception in addition to the recent NYC change: the state of Montana. According to the state's department of labor and industry, "Montana is not an 'at will' state … generally, once an employee has completed the established probationary period, the employer needs to have good cause for termination."
Whatever your situation, work with human resources and legal professionals to make sure you are in compliance with federal and local rules.
Give us a call if you have questions.