David M. Prager, Associate in the Employment, Labor & Workforce Management practice, in the firm’s Los Angeles office, was quoted in the Bloomberg Law Daily Labor Report, in “NYC Fast-Food Worker Law Shines Light on ‘Just Cause’ Policies,” by Chris Marr.
Following is an excerpt:
The odds are against a flood of new “just cause” employee termination laws that mirror New York City’s new fast-food worker protections, but even a trickle could be a major change for employers and workers.
The New York law, once it takes effect in July, will bar fast-food employers from firing workers without a good reason and require the employer to prove the reason if a worker contests their termination, plus require a progressive discipline process before most firings. Worker advocates and management-side employment lawyers alike say it’s a huge shift and a rare law that contradicts the U.S. standard of “at will” employment.
Mayor Bill de Blasio’s signing of the measure earlier this month inspired hope for its supporters and fear for its opponents that other city councils and state legislatures around the U.S. might follow suit—most likely in places with aggressive worker protections such as Philadelphia, San Francisco, Seattle, or statewide in California.
“In the worst throes of an unprecedented economic crisis, officials eliminated small business owners’ ability to make personnel decisions and manage their employees,” said Randy Peers, president and CEO of the Brooklyn Chamber of Commerce. “Make no mistake, this won’t be the last attack on at-will employment in New York State. They will come after mainstream restaurants and other food establishments next.” …
Shades of ‘Just Cause’
Although not as direct as the New York ordinance, a Covid-19 response measure passed in Los Angeles imposes a de facto “just cause” requirement in specific instances, according to employer-side lawyer David Prager, who’s based in Epstein Becker Green’s L.A. office.
L.A.’s “right of recall” ordinance requires employers that lay off workers during the pandemic to call them back first before hiring any new employees. It applies to certain airport, building services, hotel, and event center workers.
The ordinance creates a presumption that workers terminated after March 2020 were laid off for non-disciplinary reasons. If a worker files a complaint about not being rehired, the burden falls on the employer to prove they were terminated for a disciplinary reason, Prager said. A handful of other U.S. cities have passed similar “right of recall” ordinances during the pandemic, but the burden of proof language varies, he added.
“That’s a departure from the at-will standard in California,” he said.
On the other hand, he said the frequency of employment lawsuits is so high—with state laws that make it easy for plaintiffs but hard for defendants to win attorney’s fees—that many businesses already think twice before firing workers, fearing they might be accused of retaliation or discrimination if they don’t carefully document their reasons for each termination.
“A lot of smart employers are already firing people for cause because of the litigation risk in California,” Prager said. “They feel like they can’t rely on the at-will employment doctrine as codified in state law.”