Anthony Behar/Sipa USA via AP Images
McDonald’s french fries over Times Square, September 2, 2020, in New York
New York City just became the first major American city to enact a law that gives a large swath of workers—New York’s 67,000 fast-food workers—“just cause” protections, meaning that these workers can only be fired for a legitimate reason, that their employers can no longer fire them “at will.”
City Council Member Brad Lander, the law’s chief sponsor, told me that too many workers have been scared to speak up because of America’s tradition of at-will employment, which lets employers fire workers for good reasons, bad reasons, or no reasons (although workers can’t be fired for reasons prohibited by law, such as race or age discrimination). Lander said this fear of speaking up has been especially problematic during the pandemic, when so many essential workers have faced serious dangers at work, like a lack of social distancing.
“No one should be fired on a whim,” Lander said. “The core thing is to provide a kind of job security that lets you speak up when there’s something wrong, when there are rats in your Chipotle, as there were this week in Washington Heights, or when you don’t have the PPE you need, or when your boss is sexually harassing you.”
Considering how difficult it is to enact pro-worker legislation in Congress (largely because of opposition from pro-corporate Republicans and the need to obtain 60 votes to survive a Senate filibuster), Lander said it’s vital for cities and states to press ahead on expanding workers’ rights and improving standards for workers. He pointed to New York’s $15 minimum wage, paid sick days law, and Fair Workweek Law.
Lander explained that he had pushed for legislation that protects fast-food workers only because he has seen how restaurant workers who were Fight for $15 activists have often faced retaliation, and because many fast-food workers wanted such legislation. Moreover, Lander said, it’s easier to win enactment for workers in a single industry than for all of the city’s 3.6 million workers—though worker advocates, he added, could build out from there. Lander, who is running for city comptroller, says he ultimately supports enacting a just-cause law that covers all of New York’s workers.
“There is a lot of interest in this,” said Paul Sonn, state policy program director at the National Employment Law Project. “Progressive cities are likely to start seeking to follow New York’s lead, either focusing on one sector or, before too long, having it apply to all industries.”
New York’s new law builds on the Philadelphia City Council’s enactment of a just-cause law last year protecting that city’s parking lot workers, many of whom said they faced serious abuses and feared retaliation if they spoke out. Inspired by New York’s law, a city council member in Seattle is now looking into sponsoring a just-cause law there. In Illinois, Raise the Floor, a coalition of worker centers, is organizing an effort aimed at persuading that state’s legislature to enact a statewide just-cause law covering all industries. (Montana is the only state with a just-cause law, but worker advocates often complain that it doesn’t have enough teeth.)
“Historically, the worker center movement has focused on issues like wage theft, workplace discrimination, and health and safety,” said Sophia Zaman, Raise the Floor’s executive director. “An underlying issue that has presented a challenge in all these fights has been workplace retaliation when workers speak out. We need to attack the paradigm of at-will employment and [move] toward universal just-cause employment to give workers an ability to organize in an atmosphere of greater security.”
One of the nation’s largest union locals, Local 32BJ of the Service Employees International Union, played a major role in lobbying for the just-cause laws in Philadelphia and New York. The vast majority of union contracts have just-cause provisions—often seen as a key benefit of unionizing—and some labor leaders have voiced uneasiness about enacting just-cause laws that protect all workers, as that might take away an incentive for some workers to unionize.
But Kyle Bragg, president of Local 32BJ, with 175,000 members from Boston to Washington, many of them building service workers, said that just-cause laws will help, not hinder, unionization. New York’s just-cause law, Bragg said, “helps to empower these workers to join unions, helps give them power to organize themselves, helps make them more willing to speak up.”
Bragg also said the just-cause law and the Fair Workweek Law—which makes employees’ work schedules more predictable and less volatile—also help unionization by reducing worker turnover and bringing more stability to an industry. When workers view a job as long-term rather than short-term, they become more interested in unionizing where they work. Union organizers often complain about the difficulty of organizing high-turnover workplaces where employees are here today and gone tomorrow.
Fear of speaking up has been especially problematic during the pandemic, when so many essential workers have faced serious dangers at work.
Some critics of just-cause laws argue that they’re unnecessary because the National Labor Relations Act expressly protects workers against dismissal and other retaliation when they speak out to promote better pay or working conditions. But Lander noted that it’s not only hard for illegally fired workers to win reinstatement, but that it can take years to do so. “If you’re organizing for workplace rights, you are supposed to be protected under the NLRA, but it doesn’t feel that way to many workers,” Lander said.
Rebecca Dixon, executive director of the National Employment Law Project, argues that the personal and family upheaval resulting from unfair, at-will firings tends to hurt Black and Hispanic workers the most. Not only are they more likely than white workers to face an extended stretch of joblessness after being fired, but, on average, they have less household savings or family wealth to lean on. Dixon also says that at-will employment fuels racism in the workplace because when employers can give almost any reason—or no reason—for a firing, it becomes harder to prove that unlawful discrimination was what drove the decision.
Melody Walker, a 39-year-old Manhattan resident, said the newly installed manager at the Chipotle where she worked in Midtown suddenly fired her one day. The reason he gave: She wasn’t smiling. There weren’t even customers in the store at the time, Walker said. To Walker, being fired came as a brutal shock: She has two children, ages eight and 17.
Walker testified before the City Council in support of the just-cause law. “Everyone who’s working needs to have some type of stability in your life,” she said. “You should be able to go to work without thinking you have to be on eggshells all day, thinking that you can be fired at any moment for any cause.”
“I’m loyal to you as a worker and you should be loyal to me,” Walker added. “People still have to feed their families.”
Alexander Hertel-Fernandez, a professor of public policy at Columbia University, recently co-authored, with Kate Andrias of the University of Michigan Law School, a soon-to-be-published paper for the Roosevelt Institute titled “Ending At-Will Employment: A Guide for Just-Cause Reform.” They write: “[I]n no other rich democracy do private sector businesses have as much latitude to dismiss workers without justification as in the United States.” Hertel-Fernandez told me that the pandemic has fueled calls for just-cause legislation because so many workers have faced retaliation after speaking up about unsafe conditions. “There is remarkable public support for just cause,” he said. “Specifically, people think there should be more limits on employers’ ability to terminate workers.”
“You should be able to go to work without thinking you have to be on eggshells all day, thinking that you can be fired at any moment.”
In their paper, the authors cite an April 2020 Data for Progress poll of 1,181 likely voters that Hertel-Fernandez worked on, which found that 67 percent of likely voters, including 73 percent of Democrats and 64 percent of Republicans, said they would either strongly support or somewhat support a policy “preventing employers from firing workers for any reason other than legitimate work performance issues.”
Seeing such strong public support for just cause, some workplace advocates say worker groups should push statewide ballot initiatives backing just cause. Some groups are hoping that President Biden will issue an executive order stating that federal contractors can only discharge workers for just cause.
Corporate critics of the just-cause law say it will strong-arm employers to retain workers who violate rules or are lazy or unproductive. But Lander notes that just-cause laws, just like just-cause provisions in union contracts, do not prohibit dismissals; they just require employers to do their homework and provide reasons (and perhaps a record) that explain why an employee deserves to be fired—for instance, too many unexcused days or sexually harassing another worker.
When the Philadelphia just-cause law was being debated, Rich Lazer, that city’s deputy mayor for labor, said the bill “does not protect problem employees, and it does not stop employers from rightsizing a workplace, if that’s what the economics dictate. It provides workers who may be aggrieved with an opportunity to let their voice be heard.”
Under the New York law, workers who believe themselves wrongly fired can request arbitration, seek relief from a city agency, or pursue a private cause of action.
“Could this just-cause law be some step toward changing America from being the only at-will economy in the developed world?” Lander said. “I hope so.”
