At the urging of the Service Employees International Union, the New York City Council enacted legislation in 2020 that Mayor Bill DeBlasio signed in 2021 requiring that large fast-food employers have “just cause” or a bona fide economic justification before discharging or significantly reducing the hours of their employees. In early January, the U.S. Court of Appeals for the Second Circuit granted summary judgment to the city in a lawsuit by the Restaurant Law Center and the Chamber of Commerce claiming that the just-cause law is preempted by the National Labor Relations Act (NLRA). After this well-reasoned and thorough court of appeals decision upholding the just-cause law, local and state governments have the authority to adopt just-cause legislation for any and all workers. It should be on every legislative body’s docket.
One of the first cases under New York City’s law involved the unlawful discharge of Austin Locke, a Starbucks barista who was fired in July 2022 because of his support for Starbucks Workers United’s organizing efforts at his store. Locke was reinstated with back pay after New York City’s Department of Consumer Affairs and Worker Protection intervened. Yet, the city’s just-cause law applies beyond discharges designed to frustrate worker organizing. It applies equally to wrongful discharges rooted in discrimination and unconscious bias, personal animus or interpersonal conflict, and even poor judgment or inaccurate accounting.
“Just cause” is defined in the law as “the fast food employee’s failure to satisfactorily perform job duties or misconduct that is demonstrably and materially harmful to the fast food employer’s legitimate business interests.” The employer must provide a written explanation of a discharge to the employee within five days. If the employer claims a “bona fide economic reason” for a layoff or reduction in hours, the law requires the employer to demonstrate “a reduction in volume of production, sales, or profit.” Any other justifications would not constitute just cause and, therefore, a discharge based on those justifications would violate the law.
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As I explained in an earlier post, just-cause legislation shifts the burden from the employee to the employer. Typically, employment in the United States is “at-will,” which means employers may fire or lay off workers for a good reason, a bad reason, or no reason at all, unless the workers can find a directly applicable law that proclaims the firing to be illegal and prove to a court that their circumstances meet the law’s requirements. That’s a very difficult task for workers. Many fail, even if they have legitimate grounds for a lawsuit. Under a just-cause law, the employer must demonstrate that it acted for a legally permissible reason. If the employer fails, then the firing is illegal. If the worker (or the government agency enforcing the law) can show that the employer’s purported legitimate justification is not the real reason, then the firing is illegal. Failures of proof fall on the employer, not the employee.
The Supreme Court and the Courts of Appeals have held repeatedly that local and state minimum labor standards laws, like those that set minimum or prevailing wages, establish workers compensation systems, or provide unemployment insurance benefits to strikers, are not preempted by the NLRA. The Second Circuit was plainly correct when it held that New York City’s law is a minimum labor standard. It applies to all employees in the fast-food sector, not merely union-represented employees or those engaged in an organizing campaign. Any employee discharged for a reason other than those specified in the law may bring a valid complaint, regardless of any connection to a union or union organizing. As the Supreme Court declared in Fort Halifax Packing Company v. Coyne, “the mere fact that a state statute pertains to matters over which the parties are free to bargain cannot support a claim to pre-emption.”
The NLRA preempts only those local and state regulations addressing conduct that is arguably or actually prohibited or protected by the NLRA. Firing an employee without a legitimate reason is neither arguably nor actually prohibited or protected by the NLRA. As the Second Circuit acknowledged, there might be a valid preemption argument if New York City were to enforce its just-cause law against employers that lock out their employees during a labor dispute. I have boundless confidence that the city’s lawyers would not allow that to happen.
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While important for fast-food workers in New York City, the Second Circuit’s decision is an invitation to local and state governments within its jurisdiction (i.e., the rest of New York State, Connecticut, and Vermont), but also in other parts of the country, to consider and adopt just-cause legislation. This legislation could legally extend well beyond large fast-food employers. Of course, other local and state governments have to contend with U.S. Courts of Appeals that regularly show open hostility to, well, the law, so they might face a more difficult legal challenge that those jurisdictions within the Second Circuit. Yet, the Second Circuit’s reasoning is so straightforward and firmly rooted in precedent that most Courts of Appeals should agree.
At bottom, the question of whether just-cause legislation proliferates is not a legal question. It is a political question: will the labor movement aggressively advocate for just-cause legislation in more cities and states?
Let’s acknowledge that the answer is not obviously “yes.” The labor movement faces a lot of demands on its limited resources. Its top priority must be harnessing enthusiastic public support and surging worker activism to increase its membership numbers and union density after decades of decline. Another pressing priority in 2024 will be several critically important collective bargaining rounds, including the International Association of Machinists at Boeing, the American Postal Workers Union and the U.S. Postal Service, the International Longshoremen’s Association and the East Coast and Gulf Coast ports, and several large-city teachers’ unions and their cities’ school systems, as well as the ongoing battle to force Starbucks and Amazon to the bargaining table. Unions are also mobilizing to defend the NLRB from anti-union employers’ attacks in the Supreme Court and, oh yes, get their members energized for the 2024 presidential and congressional elections. The labor movement’s list of urgent and important activities is long and includes addressing some existential risks.
Nonetheless, there are three compelling reasons for the labor movement to say “yes” to an aggressive push for just-cause legislation. In each case, my argument is that promoting just-cause legislation would help the labor movement address the top priority items already on its “to do” list. First, just-cause legislation would help with organizing. Firing union-supportive workers remains a go-to strategy for employers seeking to disrupt organizing drives. Returning those workers to the workplace quickly gets them back in the fight. Reinstatement also communicates to everyone in the workplace that the employer is not all-powerful and that workers’ collective action can succeed. Certainly, the NLRB does its best with its limited budget, but involving dozens or hundreds of local and state government agencies in the effort to stop union-busting firings would bring more resources to the effort to combat a common, illegal employer tactic.
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Second, just-cause legislation creates opportunities to build potent coalitions around workplace fairness. For example, Black, Latino, women, and LGBTQ+ workers still encounter discrimination in the workplace. Yet, discrimination in the 21st Century workplace, especially when it is founded on unstated prejudices and implicit biases, is difficult to prove. As noted above, the burden is on workers, not employers, and so workers bear the risk when there is not enough proof of discrimination. Affirmative action and DEI programs’ proactive approaches to inclusion sidestepped these proof problems, but these programs are under assault across the country and the Supreme Court has enabled the pro-discrimination assaulters. Just-cause legislation can be this generation’s answer to workplace unfairness of all kinds, including discrimination. The labor movement can renew its civil rights leadership by assembling a powerful coalition of civil rights and other advocacy groups to make it happen. In turn, the coalition can come together around a broader workplace fairness agenda: fair wages, fair benefits, fair treatment, and workplace democracy for all workers.
Finally, just-cause legislation can be an effective ballot initiative and legislative organizing issue just like the minimum wage has been for many years. With leadership from the National Employment Law Project, ballot initiative campaigns have raised state minimum wages in all kinds of states, including deep red states, in addition to those states that have raised their minimum wages legislatively. From 1996 to 2021, voters approved 26 out of 28 minimum wage ballot initiatives, and the two initiatives that lost were on the ballot in 1996. The success continued thereafter. There is some evidence that these initiatives increase voter turnout, particularly among voters who would benefit from minimum wage increases. Equally important, ballot initiatives and high-profile legislative campaigns create an opportunity to debate the importance of fair wages.
That success could be repeated with just-cause ballot initiatives and legislation. Imagine ongoing debates in states and localities about unfair firings and workplace fairness. Imagine a discourse built on demands that workers should keep their jobs when they perform well and should not be subject to arbitrary firings with no protections. Imagine workers telling their stories about the effects on their lives and families of unjustified firings driven by incompetence, bigotry, union busting, or inter-personal conflict. These kinds of arguments will make the case for just-cause legislation, but also demonstrate the fundamental value of a union in every workplace.
Discharges are not the only kinds of unfair employer decisions. Everything from workplace safety and health to promotions introduces the prospect of worker-unfriendly decision-making. Fundamentally, employers’ job is to relentlessly generate profits, not to model fairness or civic responsibility. Just-cause legislation addresses one important category of decisions --- terminations --- but there are many others in every workplace. Only a union can make a meaningful difference with respect to those other decisions. Only a union can give workers a voice in those decisions.
In sum, just-cause legislation can protect against union-busting firings, build the right kind of coalitions, and foster public debate about the immense value of unions. These motivations should put just-cause legislation on labor’s priority list.
