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NYC Bill to Ban No-Cause Firings May Be Double-Edged for Unions

March 11, 2019, 10:15 AM

A first-of-its-kind proposal to ban New York City fast-food restaurants from firing workers without “just cause” may revive a point of tension among allies that typically rally behind pro-worker legislation.

The bill, introduced by Democratic City Councilman Brian Lander, describes “just cause” as an “employee’s failure to satisfactorily perform job duties or misconduct that is demonstrably and materially harmful” to the business. Lander told Bloomberg Law that the goal is to protect fast food workers who struggle with job insecurity in an industry notorious for high turnover, low wages, and resistance to unionization.

Labor law observers say the proposed ordinance has the potential to take hold across the country—like the Fight for $15 movement changed the national debate and produced minimum wage increases across the U.S. Seattle and Austin officials have indicated they’re watching the New York proposal with an eye toward introducing similar legislation, Lander said.

But when similar legislation was introduced in the past, some in the labor community raised concerns because unions traditionally use their ability to obtain “just cause” protection for workers in bargaining as a selling point in organizing efforts. Local unions in New York are backing the proposed law while five national labor groups contacted by Bloomberg Law wouldn’t comment or declined to take a position.

“It’s not a subject that’d be intensely popular within some unions, and I understand that,” Adrienne Adams, a councilwoman working with Lander and various advocacy groups on the legislation, told Bloomberg Law. “But my hope is, with the more attention and support we get, that they’ll understand how significant this issue is, and pick it up and support” the legislation.

Organizing Boon or Bust?

Fast food workers spearheading the latest “just cause” effort in New York have shown they’re a force to be reckoned with. The workers—backed by Service Employees International Union 32BJ—have already successfully pushed $15 minimum wage and predictive scheduling bills.

32BJ is a unit of the parent SEIU organization and represents 163,000 property service workers in 11 states & Washington, D.C.

It’s not unusual for local union leaders to disagree with leadership at the national umbrella organizations in policy or approach. 32BJ, for example, was one of a minority of state employee organizations that signed onto an open letter asking Inc. to reconsider its decision not to build new offices in New York.

Bill Gould, a Stanford University labor law professor, co-chaired a California bar association committee in 1984 that proposed a standard similar to Lander’s bill. Gould is a former chairman of both the National Labor Relations Board and the California agricultural labor board.

“Thirty-five years ago, union leaders were sympathetic to what we were doing but they couldn’t see any clear, immediate benefit, and of course employers were against it, so it went nowhere,” Gould told Bloomberg Law.

Gould said the usual allies—labor, employee-side lawyers, worker advocates—were “neutral” or unexpectedly “hostile” when the “just cause” policy was proposed in the 1980s.

“It’s like that old thing where the AFL-CIO was initially saying they’re against unemployment compensation because ‘why should we be for something that takes away a benefit we give to the workers?’ ” Gould said.

The proposal could aid union organizing drives by protecting participating workers from retaliation and reducing turnover, but it could nonetheless be seen as a threat by other unions, like those that aren’t engaged in wide-scale organizing.

“One of the strongest arguments unions have is that they can come in and bring some fairness” and due process via “just cause” protection, said Paul Clark, director and professor for Penn State’s School of Labor and Employment Relations. “Research shows that that’s one of the most effective reasons for people to join.” An argument can be made that workers may be less interested in unionizing if that major job protection is handled by local legislation, he said.

Hector Figueroa, 32BJ’s president, told Bloomberg Law his local’s approach is a bit different. “The more rights workers have, just cause being one of them, the better we all are,” he said.

Unified Union Front?

National offices of some major unions were reluctant to take a public position just yet—although none said they would oppose the effort.

The SEIU, American Federation of Teachers, and AFL-CIO declined comment. The AFT and AFL-CIO noted that the legislation is local and referred Bloomberg Law to the New York City Central Labor Council and United Federation of Teachers, the state’s major teachers’ union.

The CLC, which represents 1.3 million New York City workers, said it won’t take a position on the bill at this early stage. SEIU 32BJ isn’t affiliated with the CLC. The UFT didn’t respond to a request for comment.

A spokesperson for the Teamsters Joint Council 16, comprised of 27 Teamsters units in the New York area, said the organization has endorsed the legislation. Affiliate unions were informed of the proposal weeks ago, but none have publicly supported it yet.

The council spokesperson said they remain confident the measure will ultimately be backed by the labor movement generally.

“We support protections for fast food workers from unfair firings and their ultimate goal of winning their union,” council president George Miranda told Bloomberg Law. “The Teamsters will always stand behind our brothers and sisters in the labor movement” fighting for better job conditions.

Gould noted that circumstances in New York now are quite different from California in the ‘80s. Lander’s move “taps into” the self-interest of unions in his district that are aiding widespread protest actions, and it’ll be “attractive to other unions participating in similar campaigns.”

SEIU32BJ said it’s still working to get major national and state unions to endorse the proposal.

Copycat Bills, Trend Possible

Lander said he heard directly from workers who were fired for reasons “like their nails were too long or you didn’t smile.”

“The legislation is basically in response to surveys of fast food workers” in our districts “who indicated that a substantial percentage of them were being fired unfairly,” Adams said.

The measure would allow the employees to sue or arbitrate unfair termination claims for back pay and other damages. The “just cause” requirement kicks in after a 30-day probationary period.

Trade groups like the Manhattan Chamber of Commerce are criticizing the ordinance, saying it would add another regulatory challenge for small businesses.

“Unfortunately, New York seems intent on creating a challenging environment for businesses,” said Matt Haller, senior vice president of government relations at the International Franchise Association. This untested and “unprecedented proposal would cause untold challenges for small businesses.”

The city recently placed on hold a proposal to make workers’ schedules more predictive after receiving negative feedback from the business community.

Trade groups “will fight this vigorously” but the proposal will probably survive, said Angela Cornell, director of Cornell Law School’s Labor Law Clinic. Other localities are likely to take up the “just cause” issue, albeit at a slower pace, she said.

“A higher minimum wage is broadly supported, but even that took years to expand,” Cornell said. “It might be a little harder to gain traction on this issue” because it could prove to be too complex to easily present to voters, she said.

To contact the reporters on this story: Jaclyn Diaz in Washington at; Hassan A. Kanu in Washington at

To contact the editors responsible for this story: Cathleen O'Connor Schoultz at; Jay-Anne B. Casuga at; Bernie Kohn at