One of the important differences between working in a unionized workplace and working in a non-union workplace is that union-represented employees typically have “just cause” protections in their collective bargaining agreements. Just-cause provisions essentially hold that the employer may discipline and/or discharge an employee only for a legitimate, provable reason. Some public-sector workers have similar protections under their states’ civil service laws, but not all.
Just-cause protections shift the burden of proof from the employee to the employer. Employment at-will, which is the default rule in non-union workplaces, allows an employer to fire or discipline a worker for a good reason, a bad reason, or no reason at all, as long as the employer does not violate the law. So, workers who believe they have been wrongfully discharged or disciplined must prove their employers have violated a specific provision of law, like the provision of the Occupational Safety and Health Act that prohibits retaliation against an employee for filing a formal complaint with OSHA. This burden is difficult to meet, largely because employers have all or most of the necessary information about the discharge and the ability to manipulate the facts to support their narrative. So, even if the employer has violated the law, the illegal discharge or discipline may stand because the employee cannot prove the violation.
When just cause is the standard, the burden is on the employer. Most employers are savvy enough to keep a written record of their employees’ conduct in the event a discharge or discipline must be justified, but not all are. Some discharges and disciplinary actions cannot be justified regardless of the paper trail. Managers, supervisors, executives, and business owners sometimes exhibit bad judgment or racial or gender-driven prejudice. Some act because of bad information or interpersonal conflict. Still others have made the decision to rid their workplace of an active union supporter.
The latter explanation fits the case of Austin Locke, a barista at an Astoria, New York Starbucks store, who was fired a few days after helping Starbucks Workers United (SBWU) win an election among his co-workers in July 2022. Starbucks premised Locke’s firing on an accusation that was disproved by a recording from the store’s security camera. So, Starbucks could not satisfy the just cause standard. Enter New York City’s Department of Consumer and Worker Protection to enforce a new local just-cause law that protects fast-food workers. Because of the city’s just-cause law, Locke got his job back with a hefty back pay award.
In a sense, Starbucks offers a natural experiment. Locke’s firing was part of a nationwide Starbucks strategy to intimidate and remove union supporters among its baristas that the National Labor Relations Board also has sanctioned --- for example, in Buffalo, New York , where the SBWU campaign began. Only those baristas working in New York City have just-cause protections. If the discharged workers, SBWU, and the NLRB cannot meet the burden of proving that Starbucks acted on anti-union discriminatory animus, then baristas outside New York City will not be reinstated to their jobs. In New York City, the burden rests with Starbucks to prove its discharges were legitimate, not merely that they were not illegal.
Just last week, two restaurant trade associations argued before the U.S. Court of Appeals for the Second Circuit that New York’s just-cause law is preempted by the National Labor Relations Act --- in other words, it is void because it seeks to regulate conduct that Congress has declared to be exclusively a federal responsibility. The restaurant groups will and should lose their challenge to the law. New York’s just-cause law is not preempted by the NLRA.
Simply, New York’s law does not seek to supplement the NLRA’s remedies with additional penalties or other punishment when employers violate workers’ labor rights. Rather, it protects workers when their employers do not have sufficient justification for a discharge regardless of whether the employers are motivated by anti-union animus, some other illegitimate purpose, or no purpose. The standard is not the presence of anti-union discrimination. The standard is the absence of evidence and justification for discharging an employee.
A National Labor Relations Board decision about whether an employer committed an unfair labor practice under the NLRA is beside the point. The Board’s exclusive and primary jurisdiction over private-sector labor law issues is not at play. In this way, the just-cause law is similar to state minimum wage or workers compensation laws. Unions and employers bargain over wages and compensation for injured or ill workers, but that does not prohibit states and localities from enacting broadly applicable laws even if they happen to require certain minimum terms and conditions of employment that are mandatory subjects of bargaining under the NLRA. New York’s just-cause law is just such a broadly applicable employment law. Every fast-food employer, not just those with unionized or organizing employees, must demonstrate just cause before they discharge one of their employees.
If the Second Circuit decides this case as it should, and the preemption issue is resolved, then the larger question becomes, should every worker have just-cause protections? My answer is “yes,” although I would prefer that workers secure these protections through organizing a union and bargaining collectively than through local, state, or federal laws. The presence of a union in the workplace makes enforcement of just-cause protections more likely and establishes clear, situation-specific precedents that will reduce the number of future unjust discharges and disciplinary actions. Collective bargaining also usually creates a low-cost channel for complaints, like a collectively bargained grievance process, that saves workers from resorting to a government agency’s complaint and investigation process. Yet, we have to acknowledge that only 10% of American workers were union members in 2022. It may be that laws like New York City’s fast-food workers just-cause law must proliferate across the country in order for workers to get the protections they need.
Let’s end with a truly controversial idea: just cause is good for business. What?! Yes, I said it and now you know. The organized business lobby certainly would oppose just cause laws, but they would be wrong. A just-cause standard encourages rational, evidence-based discharge and disciplinary decisions by managers, supervisors, and human resources staffs. Quality, productive employees will keep their jobs even if a front-line supervisor does not like them or they fail to fit some manager’s image of how an employee should look. On the other hand, employers will continue to have discretion to fire or discipline disruptive and unproductive employees and lay off workers if they face an economic downturn, among other reasons. The only burden on employers is a burden they already should be bearing: collecting and keeping evidence to support their disciplinary decisions. This burden is little more than a sound business practice. Responsible employers should have genuine, accurate, and effective performance measurement, performance management, and disciplinary systems.
The argument that the business lobby is certain to roll out is that just cause is a stalking horse for unionization. It isn’t. Montana is the only state with a just-cause law, and the law has been in place for 36 years. In 2022, Montana had a union density rate only slightly above the national average and well below nearby states like Washington, Oregon, and California, and many others. Montana is not labor’s nirvana. But it is an example that the rest of the country has been too slow to follow. It’s time for the United States to join most of the developed world in adopting a just cause standard for all employees.
