Two Upcoming NYC Laws Severely Impact Fast Food Employee Discharge, Scheduling, And Hiring

• Published date: 09 July 2021
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Redundancy/Layoff, Employee Rights/ Labour Relations, Arbitration & Dispute Resolution
• Law Firm: Davis Wright Tremaine
• Author: Ms Kaitlyn E. Fallon and Roy P. Salins

In a move that will likely cause local fast food restaurants to strongly consider automating many jobs currently performed by human beings, New York City has enacted a pair of laws effectively eliminating the at-will employment doctrine as it applies to fast food employers in the city.

Effective July 4, 2021, fast food employers are required to show either "just cause" (Int. 1415-A) or a "bona fide economic reason" (Int. 1396) when terminating employees, and are further subject to other restrictions on scheduling and hiring practices.

Relevant Definitions

"Bona fide economic reason" means "the full or partial closing of operations or technological or organizational changes to the business in response to the reduction in volume of production, sales, or profit."

The term "discharge" is defined broadly and includes "any cessation of employment, including layoff, termination, constructive discharge, reduction in hours and indefinite suspension."

The term "fast food establishment" is a business:

• That has as its primary purpose serving food or drink items;
• 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;
• That offers limited service;
• That is part of a chain; and
• That is one of 30 or more establishments nationally (including franchisors and franchisees if they own or operate 30 or more establishments in the aggregate).

The term "just cause" is defined broadly. To terminate a fast food employee and not violate the new law, the employer must show "the fast food 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."

A "probation period" means "a defined period of time, not to exceed 30 days from the first date of work of a fast food employee."

"Progressive discipline" means "a disciplinary system that provides for a graduated range of reasonable responses to a fast food employee's failure to satisfactorily perform such fast food employee's job duties, with disciplinary measures ranging from mild to severe depending on the frequency and degree of the failure."

A "reduction of hours" means "a reduction in a fast food employee's hours of work totaling at least 15 percent of the employee's regular schedule or 15 percent of any weekly work schedule."

Restrictions on Discharging Employees for Poor Performance

Under Int. 1415-A, a fast food...