Greater Legal Protections Coming for New York City Fast Food Industry Workers

By Douglas Lipsky

The New York City Council is considering legislation that would extend protections for fast food workers against wrongful termination. Since recognizing fast food workers as a special class in 2016, Council members have been advocating for extending benefits and protections to these employees and reforming workplace practices in the industry. If passed, these measures could lead to a rise wrongful termination claims in the fast food industry.

Extending Protections from Workplace Terminations to Fast Food Employees

Two new bills have been introduced that would protect fast food employees from wrongful termination — Intro 1396 and Intro 1415, unless there is a bona fide economic reason or just cause, respectively.

Bona Fide Economic Reason

Intro 1396 prohibits a fast food employer from laying off an employee without a “bona fide economic reason,” defined as the full or partial closing of operations or changes to the business resulting in reduced production, sales or profit. If there is such a reason, layoffs must be carried out on a “last in, first out” basis. This means in reverse order of seniority based on the employee’s length of service. The bill specifies that more senior employees must be retained the longest based on a codified formula that computes length of service.

Just Cause

Intro 1415 prohibits a fast food employer from terminating an employee without “just cause” generally following progressive discipline. A employer can immediately terminate a fast food employee, however, for a sufficiently egregious failure or misconduct. Factors involved in determining whether a fast food worker was fired with just cause include:

  • The employee knew or should have known of the employer’s policy, rule, or practice
  • The policy, rule, or practice was reasonable and applied consistently
  • The employer provided relevant and adequate training to the fast food employee
  • The employer undertook a fair and objective investigation
  • Any other relevant factors

The bill also bars an employer form relying on discipline issued more than one year before the termination and also requires the employers to notify the employee in writing of the reason for the termination.

The Takeaway

Both bills provide for arbitration of disagreements over wrongful termination claims in the fast food industry but do not bar private civil actions. In addition, fines would be assessed against employers that violation provisions of the measures. While it remains to be seen whether these measures will be passed, if you are a fast food worker who has been treated unfairly by your employer, you should consult an experienced employment law attorney.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.