NYC Attacks Employment-At-Will?

Nov 29, 2021 | Blog

In September, we discussed enactment by the NYC City Council of a new law essentially voiding the long-held concept in New York of “employment-at-will.”  To reiterate, for as long as one can remember, in New York State (as in most of the other 49 states), employers have had the unfettered discretion to terminate employees “at will” for good reason, bad reason, or for no reason whatsoever. Subject to certain exceptions (“rights”) guaranteed by federal, state, and/or local law (e.g., race, religion, age, sex, national origin, etc.), private sector employees had no recourse for sudden dismissal unless they were protected by an employment agreement or a union contract.  However, effective July 4 of this year, the City Council changed all that for the City’s fast food workers.   Subject to anticipated court challenges, employees in that industry (some 70,000 in NYC) are now protected by a law that prohibits, inter alia, their discharge without the employer proving “by a preponderance of the evidence” that it had “just cause” for terminating the employee.

While the aforementioned ordinance was limited to fast food workers, it was predicted that it was only a matter of time before the City Council would extend those protections to employees city-wide.  And, based on very recent developments, it appears we may be on the cusp of that realization.

With the municipal elections behind us, the next machinations in City politics involve the struggle among those vying to become the next City Council Speaker.  Five of the six leading candidates for that position are now espousing for the elimination of “employment-at-will” for the remaining private sector employees working in New York City.  Only Council Member Justin Brannan, a somewhat moderate, hedges to a degree by specifically supporting the “just cause” standard for “essential workers.”  Of course, the vast majority of those employees (e.g., police, fire fighters, healthcare workers, etc.) are represented by unions and, thus, protected by the just cause provisions of their respective union collective bargaining agreements.  But presumably, Mr. Brannan would vote in favor of a bill to extend the fast food just cause protections to all employees working in the five boroughs, not just essential workers.

The other five candidates (Gale Brewer, Diana Ayala, Keith Powers, Francisco Moya, and Carlina Rivers) are openly pushing for all employees to enjoy the just cause protections.  Interestingly, but not at all surprising, all of those Council members (including Mr. Brannon) openly voice their support for unions in general.  This is worth noting since, although union strength and influence has seen a steady wane over the last several decades nationwide, the same is not necessarily true in New York City; i.e., NYC is still a “union town.”

Will we see a “just cause for all” ordinance in NYC in 2022?  With the makeup of the City Council, only the imprudent would wager a bet against it.  And one should also consider the possible impact on union organizing.  While employees in the private sector have long been protected against employer retribution for exercising their statutory right to organize, many nevertheless have declined to do so from fear of retaliation.  A new law like that proposed by the above City Council Speaker candidates can only embolden already strong unions in the City in their quest for new dues-paying members.  The proactive NYC employer should take the necessary steps in advance of organizing to better ensure its ability to remain union-free.

If you have questions about how a potential new municipal ordinance might impact your business, please feel free to contact Phil Mortensen at Barton LLP.