New York City’s new Job Protection Bill: Will it end employment at will?

New York City is considering legislation known as the Secure Jobs Act that would prohibit employers from firing employees without “just cause” and without notice in most cases. Intended on December 7, 2022, Int 0837-2022 would further limit the use of electronic surveillance and biometrics by employers in dismissal and disciplinary decisions and provide workers with further protections.

The law, introduced by New York City Councilwoman Tiffany Cabán, comes after New York City enacted a similar measure in 2021 requiring good cause for firing fast-food industry workers. The New York City Council is still considering the legislation.

“Just Cause” and “Progressive Discipline”

If passed, the law would prohibit employers from firing workers without “just cause or good commercial reason” unless “the termination is for a egregious failure by the worker to perform his or her duties or egregious misconduct.” . In order to be fired on a “just cause” basis, an employer would need to have a written progressive disciplinary policy made available to the employee and the employer must have applied progressive discipline prior to the dismissal. “Progressive disciplinary action” would be defined as “a graduated series of appropriate responses to an employee’s failure to perform satisfactorily” the employee’s job duties, although employers could not rely on disciplinary action imposed more than a year prior to assessing “reasonable cause”. became. ”

In addition, if dismissed for valid economic reasons, employers would have to give 14 days’ notice, and within five days of the dismissal, employers would have to provide the dismissed workers with a “written explanation” setting out “the exact reasons for the dismissal, including a copy of all materials.” , personnel records, data or assessments used by the employer in the decision to dismiss.”

Electronic surveillance

The bill would also limit employers’ ability to use data collected through electronic surveillance in firing decisions. Employers would not be able to use such data unless they could demonstrate “practical necessity” by demonstrating that (1) “there are no other practical means of tracking or evaluating employee performance”; (2) the employer used the “least invasive form of electronic surveillance available”; and (3) the employer “has informed the employee of this surveillance.” The bill defines “electronic surveillance” as “the collection of information about employee activities, communications, actions, biometric data, or behavior by electronic means, including but not limited to video or audio surveillance, electronic work rate data from employees.”

Employers would also be prohibited from disciplining employees based on data “collected using biometric technologies, video or audio recordings from an employee’s private residence, apps or other software installed on personal devices, or geofencing technologies.” .

Go new ways

If the bill becomes law, it could potentially change the nature of employment relationships across the city. In most industries, the default assumption is that employment is at will, which means that employers can generally fire employees for any lawful reason, unless the terms of employment are modified under a written contract. The proposed law would significantly change the status quo and put the burden on employers to determine the appropriateness of firing an employee. In addition, employees fired in violation of the law could be eligible for reinstatement. The bill would also put New York City at the forefront of implementing restrictions related to electronic surveillance and the collection of biometrics in hiring decisions.

The central theses

The council is still reviewing the bill. If it becomes law, it could complicate operations for New York City employers by limiting the flexibility needed in staffing and terminations. It could also complicate hiring decisions, as employers may want to be more demanding when hiring workers.

Ogletree Deakins will continue to monitor developments related to the legislation and will post updates to the New York Blog as additional information becomes available. Important information for employers is also available through the company’s webinar and podcast programs.

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