February 8, 2023

Volume XIII, Number 39


February 07, 2023

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February 06, 2023

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New York City’s New Job Protection Bill: Will It End At-will Employment?

New York City is considering a bill known as the “Secure Jobs Act,” which would prohibit employers from discharging employees without “just cause” and advanced notice in most cases. Introduced on December 7, 2022, Int 0837-2022 would further restrict employers’ use of electronic monitoring and biometric data in making discharge and disciplinary decisions, and provide other protections for workers.

The legislation, introduced by New York City councilwoman Tiffany Cabán, comes after New York City enacted a similar measure in 2021 that requires just cause for discharging fast food industry workers.  The New York City Council is still considering the legislation.

“Just Cause” and “Progressive Discipline”

If passed, the bill would prohibit employers from discharging employees without “just cause or a bona fide economic reason,” except where “termination is for an egregious failure by the employee to perform their duties, or for egregious misconduct.” In order to discharge based on “just cause,” an employer would need to have a written progressive discipline policy in effect that was provided to the employee, and the employer must have utilized progressive discipline prior to the discharge. “Progressive discipline” would be defined as a “graduated range of reasonable responses to an employee’s failure to satisfactorily perform” the employee’s job duties, though employers would not be able to rely on discipline administered more than one year prior when assessing “just cause.”

When discharging for just cause of a bona fide economic reason, employers would also be required to provide 14 days’ notice, and, within five days of the notice, employers would be required to provide discharged employees with a “written explanation” with “the precise reasons for their discharge including a copy of any materials, personnel records, data or assessments that the employer used to make the discharge decision.”

Electronic Monitoring

The bill would also limit employers’ ability to use data collected by electronic monitoring in discharge decisions. Employers would not be able to use such data unless they could establish “practical necessity” by showing that (1) “there is no other practical means of tracking or assessing employee performance”; (2) the employer used the “least invasive form of electronic monitoring available”; and (3) the employer “provided notice to the employee of that monitoring.” The bill defines “electronic monitoring” as “the collection of information concerning employee activities, communications, actions, biometrics or behaviors by electronic means including, but not limited to, video or audio surveillance, electronic employee work speed data.”

Employers would be further prohibited from disciplining employees based on data “gathered using biometric technologies, video or audio recordings within the private home of an employee, apps or other software installed on personal devices or geofencing technologies.”

Breaking New Ground

If the bill becomes law, it would potentially alter the nature of employment relationships throughout the city. In most industries, the default is that employment is presumed to be at will, meaning that, generally, employers can discharge employees for any lawful reason, unless the terms of employment are changed pursuant to a written contract. The proposed bill would significantly alter the status quo, shifting the burden to employers to establish the reasonableness of an employee’s discharge. Additionally, employees discharged in violation of the act could be eligible for reinstatement. The bill would also put New York City at the forefront of implementing restrictions related to electronic monitoring and the collection of biometric data in employment decisions.

Key Takeaways

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

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XIII, Number 19

About this Author

Kelly Cardin Employment lawyer Ogletree Deakins.

Kelly M. Cardin is an associate in the Stamford office of Ogletree Deakins. Her practice focuses on representing employers in a wide range of disputes, including those involving discrimination and retaliation claims, wage and hour claims, wrongful discharge claims, and claims under the FMLA. Kelly also represents employers in class action lawsuits, often involving wage and hour issues. Additionally, she maintains a commercial litigation practice, representing companies in breach of contract and trade secret disputes, among others. Kelly has represented clients before the...

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