Working for Justice

New York City Fast Food Workers Just Declared Independence from At-Will Employment

Posted July 4th, 2021 by James Hannaway in Employment Law.

As of today, July 4, 2021, fast food workers in New York City are free from at-will employment, one of the oldest and least worker-friendly rules in employment law. At-will employment means that an employer can discharge workers at will “for a good reason, a bad reason, or no reason at all.”[1] This rule generally applies to all private employees in America who do not have a “just cause” provision or a time period for employment in their contracts. Thus, private employers have been able to fire workers for the following reasons:

  • Not smiling enough at customers[2]
  • Posting satirical cartoons on Facebook[3]
  • Attending law school at night after work[4]
  • Speaking out against defense spending[5]
  • Refusing to falsify records[6]
  • Reporting financial improprieties to top management[7]

Based on stories like these, the rule’s shaky historical foundations,[8] and its disproportionate impact on workers of color,[9] scholars and advocates have sought to end at-will employment for decades.[10] Over time, courts have recognized some important exceptions to at-will employment. A contractual[11] or fiduciary obligation[12] may now limit an employers’ absolute authority to fire an employee. In addition, public policy,[13] anti-discrimination laws,[14] and whistleblower protections[15] have made some discriminatory or retaliatory firings unlawful.[16] Despite these widening exceptions, few have successfully challenged the default rule itself.

New York City fast food workers are now part of the proud few, joining Philadelphia parking attendants and every Montana resident in enjoying just-cause protections. New York City, mirroring Philadelphia’s law, provides that, after a probationary period, a fast food worker can be discharged only for the “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.”[17] N.Y.C. Admin. Code § 20-1271; see Phila., Pa., Code § 9-4701. Philadelphia and New York City also provide for progressive discipline and mandate that employers give the actual reason for a discharge in writing. N.Y.C. Admin. Code § 20-1272(c), (d); Phila., Pa., Code § 9-4703(2), (3). Taken together, these laws will provide meaningful protections from all-too-frequent unfair firings.

Even if you are not a Montana resident, Philadelphia parking attendant, or New York City fast food worker, an exception to the at-will employment rule may apply to your wrongful discharge. If you believe that your employer has discharged you for an unlawful reason, you may want to contact a lawyer at our firm.

Footnotes

[1] See, e.g., Winston v. Smithsonian Sci. Info. Exch., Inc., 437 F. Supp. 456, 473 (D.D.C. 1977), aff’d, 595 F.2d 888 (D.C. Cir. 1979).
[2] Josh Eidelson, Most Americans Can Be Fired for No Reason at Any Time, But a New Law in New York Could Change That, Bloomberg Businessweek (June 21, 2021) https://www.bloomberg.com/news/features/2021-06-21/new-york-just-cause-law-is-about-to-make-workers-much-tougher-to-fire.
[3] Caplan v. L Brands/Victoria’s Secret Stores, LLC, 210 F. Supp. 3d 744, 750 (W.D. Pa. 2016) (holding that employer could fire employee for posting cartoon featuring former Clippers owner Donald Sterling in a KKK hood), aff’d sub nom. Caplan v. L Brands/Victoria’s Secret Stores, 704 F. App’x 152 (3d Cir. 2017).
[4] Scroghan v. Kraftco Corp., 551 S.W.2d 811 (Ky. Ct. App. 1977).
[5] Korb v. Raytheon Corp., 574 N.E.2d 370 (Mass. 1991). The employer was a defense contractor.
[6] Guy v. Travenol Labs., Inc., 812 F.2d 911 (4th Cir. 1987) (holding that employer could fire employee for refusing to engage in criminal activity under North Carolina law). But see Tameny v. Atl. Richfield Co., 610 P.2d 1330, 1336 (Ca. 1980) (holding the opposite under California law); O’Sullivan v. Mallon, 390 A.2d 149, 150 (N.J. 1978) (holding the opposite under New Jersey law).
[7] Murphy v. Am. Home Prod. Corp., 448 N.E.2d 86 (N.Y. 1983)
[8] Joan M. Krauskopf, Employment Discharge: Survey and Critique of the Modern at Will Rule, 51 UMKC L. Rev. 189, 192-93 (1983).
[9] Alexander Hertel-Fernandez, Roosevelt Institute, American Workers’ Experiences with Power, Information, and Rights at Work: A Roadmap for Reform (May 13, 2020) https://rooseveltinstitute.org/publications/american-workers-experiences-with-power-information-and-rights-on-the-job-a-roadmapfor-reform/; see also Cynthia L. Estlund, Wrongful Discharge Protections in an at-Will World, 74 Tex. L. Rev. 1655, 1682 (1996) (explaining that the at-will employment regime undermines anti-discrimination law).
[10] See, e.g., Clyde W. Summers, Individual Protection Against Unjust Dismissal: Time for A Statute, 62 Va. L. Rev. 481 (1976).
[11] Wieder v. Skala, 609 N.E.2d 105 (N.Y. 1992) (holding that forcing junior lawyer to violate ethics rules violated implied contractual obligation); Weiner v. McGraw-Hill, Inc., 443 N.E.2d 441, 445 (N.Y. 1982) (allowing breach of contract action in part because employer did not follow “strict procedures set forth in the [employee] handbook”).
[12] My colleagues Andrew Melzer and David Tracey convincingly argue that these fiduciary duties should be broad. Andrew Melzer & David Tracey, Employers Should Owe a Duty of Loyalty to Their Workers, Cardozo L. Rev. De Novo (2020), http://cardozolawreview.com/employers-should-owe-a-duty-of-loyalty-to-their-workers/.
[13] Petermann v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., Loc. 396, 344 P.2d 25, 27 (Ca. 1959) (holding that forcing employee to falsely testify was “obnoxious to the interests of the state and contrary to public policy”).
[14] See, e.g., 42 U.S.C. § 2000e-2(a)(1) (prohibiting “discharge” based on a protected characteristic).
[15] See, e.g., 31 U.S.C. § 3730(h) (prohibiting retaliation against False Claims Act whistlebowers)
[16] An employee cannot be discharged in violation of public policy, anti-discrimination laws, or whistleblower laws. In addition, an employee can assert a claim based on a contract, an employer’s promises, or an implied covenant of good faith and fair dealing.
[17] Montana defines good cause as a “failure to satisfactorily perform job duties, disruption of the employer’s operation, or other legitimate business reason.” Mont. Code Ann. § 39-2-903(5).

James Hannaway is an Associate in the Washington, DC office of Sanford Heisler Sharp, LLP.
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