Most Americans Can Be Fired for No Reason at Any Time, But a New Law in New York Could Change That
ILLUSTRATION: MICHAEL DEFORGE FOR BLOOMBERG BUSINESSWEEK
“Just-cause” protections will revolutionize job security for 70,000 fast-food workers—and millions more Americans may benefit soon, too.
Melody Walker had just finished working the lunch rush at a Chipotle in New York City when her manager walked up and told her, in front of several co-workers, that she was fired. Walker says she’d worked there almost a year without any complaints from the boss. When the 36-year-old single mom asked him for an explanation, he said it was because she wasn’t smiling. (This was 2018, pre-masks.) “There were no customers there to smile at,” Walker recalls. As she packed up her stuff, she told inquiring co-workers why she was leaving early. “They thought it was wrong, too, but what can they say?” she says. “Because they’ll get fired, too.”
This is how the U.S. works under at-will employment, a legal standard that allows companies to fire people for almost any reason—and sometimes for no reason at all. Unlike in other wealthy countries, where bosses generally have to provide just cause for termination, at-will positions account for most U.S. jobs. This probably includes your job, dear reader. Most white-collar and professional workers aren’t any more legally protected from their bosses’ whims than Walker was. Google software engineers, Wells Fargo & Co. bankers, and Mayo Clinic surgeons work at will. So do humble Bloomberg reporters. The only Americans with a higher standard of protection tend to be limited to the C-suite, the public sector, the nation’s dwindling unionized workplaces, and—because of a complex, decades-old compromise—Montana.
Workers who spoke with Bloomberg Businessweek say they’ve been fired for noting that a manager showed up two hours late, for suffering a panic attack on the job after being subjected to racist harassment, and for disclosing to co-workers that they’d contracted Covid-19. In April a federal judge in Alabama ruled that a silicon manufacturer was within its rights to fire a Black employee for refusing to cut his dreadlocks. Firing employees for raising safety concerns is illegal, as is firing them for trying to unionize, or for being Black, pregnant, transgender, old, or Muslim. But at-will employment makes those protections difficult to enforce, and the penalties don’t stop companies from canning people.
“It took me months to get another job and put my family’s life back on track,” Walker testified to city lawmakers at a hearing last year. “I don’t want anyone to have to go through what I did.” (Chipotle Mexican Grill Inc. said in a statement to Businessweek that it’s “committed to creating a safe and engaging work environment” and that it has an 800 number for anonymous complaints.)
Walker at a protest for just cause in New York. SOURCE: 32BJ SEIU
In 2018, a few months after Chipotle fired her, Walker began working with union organizers and local officials on a groundbreaking two-law package that will make New York City a little more like Europe. The laws, which take effect on July 5, ban at-will employment among the city’s fast-food businesses, meaning that from now on, Chipotle and its peers will have to provide just cause to fire one of their roughly 70,000 workers in the five boroughs. The standard requires employers to show workers have engaged in misconduct or failed to satisfactorily perform their duties.
Workers who haven’t done anything egregious will be guaranteed a system of warnings and consistent, proportionate disciplinary actions before they can be let go. To prevent retaliatory firings under the guise of broader layoffs, companies will have to privilege seniority while shrinking their payrolls and must offer laid-off workers their jobs back before hiring new people. Workers who believe they’ve been unfairly fired will be able to pursue arbitration, complain to the city’s Department of Consumer and Worker Protection, or file a lawsuit in state court, where a judge could award punitive damages. “This is just basic common sense,” says Brad Lander, the New York City Council member who spearheaded the legislation’s passage. “If there’s not a problem, you get to keep working.”
On May 28, the New York State Restaurant Association filed a federal lawsuit aiming to overturn the just-cause rules, claiming that they discriminate against employers and violate their constitutional right to a trial by jury. But the first pretrial conference in the case is scheduled for September, months after the law takes effect. The restaurant lobby’s similar challenges to the state’s fast-food minimum wage and other labor protections were defeated in court.
“Everyone would want this protection for themselves, their kids”
The New York legislation resembles a law that Philadelphia passed in 2019 to protect its roughly 1,000 parking attendants. Similar, pan-industry efforts are gearing up in Seattle and at the state level in Illinois and New Jersey. Senator Bernie Sanders wants to make just cause the national standard, while progressive groups are pushing President Joe Biden to issue an executive order that would mandate just-cause protections for federal contractors. Millions of Americans work under federal contracts, and tens of millions—about one-fifth of the national labor pool—work for companies that have them.
A national just-cause standard, or even a majority just-cause U.S. workforce, would usher in an historic shift of negotiating power away from bosses to employees. Strong enforcement would empower workers to organize with far less fear of reprisals and stands to make the employer-employee relationship feel a bit more like a contract and a bit less like feudal serfdom. Thus far, the battles have remained narrow and local; New York City fast food is the biggest win for the just-cause movement to date. Lander, whose close ties with grassroots worker advocates have helped turn some of their protest chants into city law, is eager to expand the standard to all workers in America’s financial capital. “Plenty of people have managers who are jerks,” he says. “Everyone would want this protection for themselves, for their kids.”
In the bigger fight, Lander and his allies have been badly outmatched. Their effort to pass temporary, Covid-centric just-cause protections for the city’s essential workers collapsed last year under the weight of opposition from companies, lobbyists, and even nonprofits arguing that the pandemic was a lousy time to impose new restrictions on struggling employers. Companies and business groups have continued to argue that the pandemic remains an existential threat to companies and that they need maximum flexibility to impose layoffs and furloughs. To have the confidence to hire quickly, the thinking goes, they need to be able to fire just as quickly.
As long as companies need no good reason to fire people, Lander says, employees will be vulnerable to wage theft, sexual harassment, and other workplace ills. He says he’s been proud to be “an instrument” for fast-food workers and stresses that just cause can be a foundation for American labor’s push for better treatment. Whenever Lander has joined with workers to fight for their rights, he’s found that one of the biggest hurdles has been their primal fear for survival. “The likelihood that you could just lose that job for any reason, on no notice,” he says, “was always quite near the surface.”