Most Americans Can Be Fired for No Reason at Any Time, But a New Law in New York Could Change That
“Just-cause” protections will revolutionize job security for 70,000 fast-food workers—and millions more Americans may benefit soon, too.
ILLUSTRATION: MICHAEL DEFORGE FOR BLOOMBERG BUSINESSWEEK
By
Josh Eidelson
June 21, 2021, 4:00 AM EDT
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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.”
Lander is an unusually earnest politician with a flair for sound bites and a tendency toward sermons. Born in 1969, he grew up in the suburbs of St. Louis, lying on the floor of his dad’s legal aid office and drawing pictures with captions like “No more poor.” In his teens, he protested discrimination against Jews in the Soviet Union, then racial segregation in Chicago, where he went to college. He got a master’s in social anthropology in London, then followed his now-wife, Meg Barnette, to New York City, where she was starting law school. In New York he eventually ran two nonprofits advocating for affordable housing.
“For most of that period, I thought electoral politics was pretty gross,” he says. But after fighting to get affordable-housing requirements included in a local rezoning, he came to believe that organizers needed more allies on the inside. He won election to the City Council from Brooklyn in 2009, replacing outgoing member and future mayor Bill de Blasio. During his first term, Lander co-founded the council’s Progressive Caucus as well as a national advocacy group called Local Progress, which aims to copy-paste progressive policies, such as fracking bans and heavy wage-theft penalties, from one jurisdiction to another. “He is a true believer that progressive politicians can only be effective if they are embedded in and accountable to the movement,” says Ady Barkan, a former director of Local Progress. Instead of just negotiating with activists and unions, Lander brainstorms with them.
Lander brainstorms with activists and unions.
PHOTOGRAPHER: ADRIENNE GRUNWALD FOR BLOOMBERG BUSINESSWEEK
The Progressive Caucus stepped up its ambitions in 2012, about the same time New York City’s fast-food workers began a series of daylong strikes demanding the right to unionize and a $15 hourly minimum wage. Over the past eight years, the council has passed laws requiring that companies provide their workers with paid sick days, that freelancers get paid within 30 days, and that retail and fast-food businesses give workers advance notice of their schedules. Meanwhile, the movement that’s come to be called Fight for $15 raised expectations for what cities and states can do for workers. New York state, like California, has had a $15 minimum wage law on the books for five years, even as the federal minimum wage has remained stuck at $7.25. (President Barack Obama raised the minimum wage for federal contractors to $10.10.)
Lander’s experiences with the fast-food strikes underscored the chilling effect of at-will employment. Workers frequently worried their bosses would fire them for exercising their legal right to collective action. During the first wave of strikes, Progressive council members such as Lander and Jumaane Williams, now the city’s public advocate, personally intervened to undo some alleged retaliatory terminations. A Wendy’s in Brooklyn told one of the strikers that she was being fired for “absenteeism,” then relented after Williams urged customers to leave and led an impromptu protest inside the restaurant, followed by a picket outdoors. But the politicians couldn’t chaperone everyone.
Over the next several years, the Progressives grew convinced that just-cause protections would help turn protests from a job-threatening risk back into a fundamental right. In 2019, Lander and 32BJ—the local building-services affiliate of the Service Employees International Union, the labor group behind the fast-food strikes—gathered lawmakers and worker advocates at City Hall to unveil a study about the pervasiveness of unjust firings among fast-food workers, along with legislation aimed at changing things. Council member Adrienne Adams, a Progressive who sponsored the proposal with Lander, says she was eager to help get it passed partly because workers demanded it. “We picked up their fight,” says Adams, adding that her daughters both had their hours slashed unfairly while working in food service.
The law’s passage was a multiyear slog. Business leaders said Lander and his colleagues would threaten their profitability by forcing them to retain mediocre employees and troublemakers. During a February 2020 hearing of the City Council’s labor committee, industry representatives warned that just cause could force businesses to reduce hiring, replace workers with robots, and move out of New York. Besides, it was just so unfair. Kathleen Reilly, government affairs coordinator for the New York State Restaurant Association, said the just-cause standard would mean “the employer is guilty until proven innocent,” adding: “That is contrary to American justice.”
After the industry representatives concluded their opening statements, Lander said he’d met with dozens of business leaders about his workplace bills. Then he noted that time hadn’t borne out the industry’s similar predictions of dire consequences from the $15 minimum wage, mandatory paid sick leave, and other recent reforms. He pressed the panelists on why it should remain legal to fire employees for not smiling.
“The ability to be let go without notice or at the employer’s discretion is an almost universal situation,” Reilly said. “I know all my colleagues and I are in the same position as well.”
“I would love to see you guys also protected from unfair firings, just to be clear,” Lander said.
“From unfair firings, everyone is protected by state labor law,” Reilly said.
“No, you’re not,” Lander replied. “You’re not protected from a firing without a reason whatsoever.”
Buoyed by years of fast-food workers’ activism, Lander and Adams’s arguments won. In December their just-cause legislation passed with three-quarters of the council’s support, and Mayor de Blasio signed it into law in January. The city’s Consumer and Worker Protection agency says it will conduct webinars and go door to door to make sure that workers are aware of the new standard and that bosses comply.
Employers have continued to argue that they’re still scrambling to recover from the pandemic and that stronger job protections will hurt their ability to sustain jobs while office workers are still trickling their way back to New York. “This threatening legislation is an affront to small-business owners across the city,” says Randy Peers, president of the Brooklyn Chamber of Commerce. “It’s a direct assault on at-will employment and calls into question how we encourage small-business owners who will be vital to New York’s economic recovery.”
“The revolution begins somewhere,” says Kyle Bragg, president of SEIU 32BJ. “These workers were thirsty to be treated with respect and tired of having their at-will employment status hung over their heads to keep them docile and quiet.”
At-will workers often have to rely on public shaming and luck
In recent polls, 47% of Americans said they had at some point been fired for a bad reason or for no reason. Few of those surveyed knew precisely how much discretion employers have—that they can reward workers for supporting particular politicians or fire workers over tweets they don’t like. Two-thirds of respondents said they’d support a just-cause policy, including a majority of Republicans. Still, sweeping federal legislation remains a quixotic goal as long as a 60-vote filibuster remains the norm in the 50-50 Senate.
Executive action could be a different story. In a proposal drafted before Biden’s inauguration, analysts from the Center for American Progress and the National Employment Law Project recommended mandating just-cause requirements for contractors looking to do business with the U.S. government. Anastasia Christman, a co-author of the analysis, says the added job security would pay off in terms of productivity and morale, as well as by increasing the number of whistleblowers who feel safe to speak up. “We have had fruitful conversations,” Christman says of the Biden administration, which in April mandated a minimum wage of $15 an hour for federal contractors and created a task force charged with ensuring the federal government acts as a “model employer.” A White House spokesperson declined to comment.
At local and state levels, New York’s example has proved instructive, says Teresa Mosqueda, a member of the Seattle City Council. A decade ago the Washington state AFL-CIO, where Mosqueda was legislative director, decided just cause was too hopeless to even try to drum up lawmakers’ interest in such a bill. “I think people get it now,” she says. She plans to talk with colleagues and labor and business groups to develop a local version. The advocacy group Make the Road is calling for just-cause legislation in New Jersey. Both houses of the Illinois legislature recently held hearings on the Employee Security Act, which would extend just-cause protections across industries and restrict terminations based on electronic monitoring of employees. Such proposals stand a decent chance of passing more quickly than Lander’s did.
A handful of more modest worker protection measures have passed in the past year, too. In Philadelphia a Covid whistleblower law requires companies to provide a good reason for firing workers who speak up about health and safety concerns. In April, California began requiring hotels to offer workers recently laid off because of Covid first dibs on their old jobs.
With the fast-food law set to take effect soon, New York’s own efforts, and Lander’s, are at a crossroads. Last year he and fellow Progressives introduced a broad “essential workers bill of rights” that included temporary just-cause protections for those laboring in person during the pandemic. But after a six-hour hearing at which businesses warned the package would drive them to bankruptcy or to New Jersey, it wasn’t brought up for a vote. “We did not show up for them when we could have,” Lander says of the New Yorkers who didn’t get to work from home during the pandemic.
As the city prepares to go to the polls on June 22, Lander has stressed this point in his underdog campaign for city comptroller against Council Speaker Corey Johnson. Lander blames Johnson for blocking the essential-workers legislation; Johnson’s office says feedback on the issue led the council to focus on tenants and small businesses. As primary day approaches with Johnson consistently in the lead, Lander’s labor allies have been soliciting support for a just-cause law that would apply to a broader range of workers.
If elected comptroller, Lander says, he’ll use the office to shame companies that abuse at-will employment and will continue to advocate to abolish it citywide. Johnson hasn’t embraced a citywide version of just cause but is promising to establish a benefit fund for gig workers and replace city government consultants with permanent public employees. While Lander has endorsements from the likes of Senators Bernie Sanders and Elizabeth Warren, Representative Alexandria Ocasio-Cortez, and the New York Times, Johnson’s deeper bench of local support includes even 32BJ, the SEIU affiliate that spearheaded the fast-food just-cause law with Lander. The union cited the law’s passage in a statement that said Johnson “has a strong record putting workers first.”
Unless Lander pulls off an upset, the New York City Council’s term limits mean he’ll be out of public office come January. He says he hasn’t thought much about backup plans during the comptroller campaign but will remain passionate about social and economic justice.
For now, most Americans’ jobs will continue to be subject to the caprices of their employers. An ER doctor in Arizona was canned after raising concerns about the seriousness of fall Covid outbreaks. This spring, a private school in Miami threatened to dismiss teachers if they get Covid vaccines. An appeals lawyer for Jones Day in Washington, D.C., was fired after he criticized the firm’s paid leave policy. (The firm has said he showed poor judgment and a disinterest in pursuing his career there.)
Under at-will employment, workers often have to rely on public shaming and luck. That much was clear from a pair of recent cases involving Trader Joe’s Co. workers. Late last year, the company fired a Portland, Ore., employee named Sydney Satre over a letter she wrote complaining that it wasn’t adequately supporting the Black Lives Matter movement. “It is clear from your letter that you do not support Trader Joe’s nor like working for the company,” her manager wrote in the termination notice. “For this reason, we will be processing your separation from Trader Joe’s effective immediately.” In February the grocery chain sent Ben Bonnema a similar note after he wrote a letter to Chief Executive Officer Dan Bane asking for stricter policies on air filtration and mask-wearing. Like Satre’s, Bonnema’s paperwork opened with this reminder: “Your employment is at will, which means Trader Joe’s may terminate it without cause or notice.”
Trader Joe’s didn’t respond to requests for comment about either case, but its actions diverged dramatically. The company reinstated Bonnema less than a week after he posted his letter on Twitter, where it went viral and caught the attention of several national news outlets. Satre’s firing got some local press coverage, and in March she sued Trader Joe’s for whistleblower retaliation and associational race discrimination. She hasn’t gotten her job back.
“Just-cause” protections will revolutionize job security for 70,000 fast-food workers—and millions more Americans may benefit soon, too.
ILLUSTRATION: MICHAEL DEFORGE FOR BLOOMBERG BUSINESSWEEK
By
Josh Eidelson
June 21, 2021, 4:00 AM EDT
SHARE THIS ARTICLE
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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.”
Lander is an unusually earnest politician with a flair for sound bites and a tendency toward sermons. Born in 1969, he grew up in the suburbs of St. Louis, lying on the floor of his dad’s legal aid office and drawing pictures with captions like “No more poor.” In his teens, he protested discrimination against Jews in the Soviet Union, then racial segregation in Chicago, where he went to college. He got a master’s in social anthropology in London, then followed his now-wife, Meg Barnette, to New York City, where she was starting law school. In New York he eventually ran two nonprofits advocating for affordable housing.
“For most of that period, I thought electoral politics was pretty gross,” he says. But after fighting to get affordable-housing requirements included in a local rezoning, he came to believe that organizers needed more allies on the inside. He won election to the City Council from Brooklyn in 2009, replacing outgoing member and future mayor Bill de Blasio. During his first term, Lander co-founded the council’s Progressive Caucus as well as a national advocacy group called Local Progress, which aims to copy-paste progressive policies, such as fracking bans and heavy wage-theft penalties, from one jurisdiction to another. “He is a true believer that progressive politicians can only be effective if they are embedded in and accountable to the movement,” says Ady Barkan, a former director of Local Progress. Instead of just negotiating with activists and unions, Lander brainstorms with them.
Lander brainstorms with activists and unions.
PHOTOGRAPHER: ADRIENNE GRUNWALD FOR BLOOMBERG BUSINESSWEEK
The Progressive Caucus stepped up its ambitions in 2012, about the same time New York City’s fast-food workers began a series of daylong strikes demanding the right to unionize and a $15 hourly minimum wage. Over the past eight years, the council has passed laws requiring that companies provide their workers with paid sick days, that freelancers get paid within 30 days, and that retail and fast-food businesses give workers advance notice of their schedules. Meanwhile, the movement that’s come to be called Fight for $15 raised expectations for what cities and states can do for workers. New York state, like California, has had a $15 minimum wage law on the books for five years, even as the federal minimum wage has remained stuck at $7.25. (President Barack Obama raised the minimum wage for federal contractors to $10.10.)
Lander’s experiences with the fast-food strikes underscored the chilling effect of at-will employment. Workers frequently worried their bosses would fire them for exercising their legal right to collective action. During the first wave of strikes, Progressive council members such as Lander and Jumaane Williams, now the city’s public advocate, personally intervened to undo some alleged retaliatory terminations. A Wendy’s in Brooklyn told one of the strikers that she was being fired for “absenteeism,” then relented after Williams urged customers to leave and led an impromptu protest inside the restaurant, followed by a picket outdoors. But the politicians couldn’t chaperone everyone.
Over the next several years, the Progressives grew convinced that just-cause protections would help turn protests from a job-threatening risk back into a fundamental right. In 2019, Lander and 32BJ—the local building-services affiliate of the Service Employees International Union, the labor group behind the fast-food strikes—gathered lawmakers and worker advocates at City Hall to unveil a study about the pervasiveness of unjust firings among fast-food workers, along with legislation aimed at changing things. Council member Adrienne Adams, a Progressive who sponsored the proposal with Lander, says she was eager to help get it passed partly because workers demanded it. “We picked up their fight,” says Adams, adding that her daughters both had their hours slashed unfairly while working in food service.
The law’s passage was a multiyear slog. Business leaders said Lander and his colleagues would threaten their profitability by forcing them to retain mediocre employees and troublemakers. During a February 2020 hearing of the City Council’s labor committee, industry representatives warned that just cause could force businesses to reduce hiring, replace workers with robots, and move out of New York. Besides, it was just so unfair. Kathleen Reilly, government affairs coordinator for the New York State Restaurant Association, said the just-cause standard would mean “the employer is guilty until proven innocent,” adding: “That is contrary to American justice.”
After the industry representatives concluded their opening statements, Lander said he’d met with dozens of business leaders about his workplace bills. Then he noted that time hadn’t borne out the industry’s similar predictions of dire consequences from the $15 minimum wage, mandatory paid sick leave, and other recent reforms. He pressed the panelists on why it should remain legal to fire employees for not smiling.
“The ability to be let go without notice or at the employer’s discretion is an almost universal situation,” Reilly said. “I know all my colleagues and I are in the same position as well.”
“I would love to see you guys also protected from unfair firings, just to be clear,” Lander said.
“From unfair firings, everyone is protected by state labor law,” Reilly said.
“No, you’re not,” Lander replied. “You’re not protected from a firing without a reason whatsoever.”
Buoyed by years of fast-food workers’ activism, Lander and Adams’s arguments won. In December their just-cause legislation passed with three-quarters of the council’s support, and Mayor de Blasio signed it into law in January. The city’s Consumer and Worker Protection agency says it will conduct webinars and go door to door to make sure that workers are aware of the new standard and that bosses comply.
Employers have continued to argue that they’re still scrambling to recover from the pandemic and that stronger job protections will hurt their ability to sustain jobs while office workers are still trickling their way back to New York. “This threatening legislation is an affront to small-business owners across the city,” says Randy Peers, president of the Brooklyn Chamber of Commerce. “It’s a direct assault on at-will employment and calls into question how we encourage small-business owners who will be vital to New York’s economic recovery.”
“The revolution begins somewhere,” says Kyle Bragg, president of SEIU 32BJ. “These workers were thirsty to be treated with respect and tired of having their at-will employment status hung over their heads to keep them docile and quiet.”
At-will workers often have to rely on public shaming and luck
In recent polls, 47% of Americans said they had at some point been fired for a bad reason or for no reason. Few of those surveyed knew precisely how much discretion employers have—that they can reward workers for supporting particular politicians or fire workers over tweets they don’t like. Two-thirds of respondents said they’d support a just-cause policy, including a majority of Republicans. Still, sweeping federal legislation remains a quixotic goal as long as a 60-vote filibuster remains the norm in the 50-50 Senate.
Executive action could be a different story. In a proposal drafted before Biden’s inauguration, analysts from the Center for American Progress and the National Employment Law Project recommended mandating just-cause requirements for contractors looking to do business with the U.S. government. Anastasia Christman, a co-author of the analysis, says the added job security would pay off in terms of productivity and morale, as well as by increasing the number of whistleblowers who feel safe to speak up. “We have had fruitful conversations,” Christman says of the Biden administration, which in April mandated a minimum wage of $15 an hour for federal contractors and created a task force charged with ensuring the federal government acts as a “model employer.” A White House spokesperson declined to comment.
At local and state levels, New York’s example has proved instructive, says Teresa Mosqueda, a member of the Seattle City Council. A decade ago the Washington state AFL-CIO, where Mosqueda was legislative director, decided just cause was too hopeless to even try to drum up lawmakers’ interest in such a bill. “I think people get it now,” she says. She plans to talk with colleagues and labor and business groups to develop a local version. The advocacy group Make the Road is calling for just-cause legislation in New Jersey. Both houses of the Illinois legislature recently held hearings on the Employee Security Act, which would extend just-cause protections across industries and restrict terminations based on electronic monitoring of employees. Such proposals stand a decent chance of passing more quickly than Lander’s did.
A handful of more modest worker protection measures have passed in the past year, too. In Philadelphia a Covid whistleblower law requires companies to provide a good reason for firing workers who speak up about health and safety concerns. In April, California began requiring hotels to offer workers recently laid off because of Covid first dibs on their old jobs.
With the fast-food law set to take effect soon, New York’s own efforts, and Lander’s, are at a crossroads. Last year he and fellow Progressives introduced a broad “essential workers bill of rights” that included temporary just-cause protections for those laboring in person during the pandemic. But after a six-hour hearing at which businesses warned the package would drive them to bankruptcy or to New Jersey, it wasn’t brought up for a vote. “We did not show up for them when we could have,” Lander says of the New Yorkers who didn’t get to work from home during the pandemic.
As the city prepares to go to the polls on June 22, Lander has stressed this point in his underdog campaign for city comptroller against Council Speaker Corey Johnson. Lander blames Johnson for blocking the essential-workers legislation; Johnson’s office says feedback on the issue led the council to focus on tenants and small businesses. As primary day approaches with Johnson consistently in the lead, Lander’s labor allies have been soliciting support for a just-cause law that would apply to a broader range of workers.
If elected comptroller, Lander says, he’ll use the office to shame companies that abuse at-will employment and will continue to advocate to abolish it citywide. Johnson hasn’t embraced a citywide version of just cause but is promising to establish a benefit fund for gig workers and replace city government consultants with permanent public employees. While Lander has endorsements from the likes of Senators Bernie Sanders and Elizabeth Warren, Representative Alexandria Ocasio-Cortez, and the New York Times, Johnson’s deeper bench of local support includes even 32BJ, the SEIU affiliate that spearheaded the fast-food just-cause law with Lander. The union cited the law’s passage in a statement that said Johnson “has a strong record putting workers first.”
Unless Lander pulls off an upset, the New York City Council’s term limits mean he’ll be out of public office come January. He says he hasn’t thought much about backup plans during the comptroller campaign but will remain passionate about social and economic justice.
For now, most Americans’ jobs will continue to be subject to the caprices of their employers. An ER doctor in Arizona was canned after raising concerns about the seriousness of fall Covid outbreaks. This spring, a private school in Miami threatened to dismiss teachers if they get Covid vaccines. An appeals lawyer for Jones Day in Washington, D.C., was fired after he criticized the firm’s paid leave policy. (The firm has said he showed poor judgment and a disinterest in pursuing his career there.)
Under at-will employment, workers often have to rely on public shaming and luck. That much was clear from a pair of recent cases involving Trader Joe’s Co. workers. Late last year, the company fired a Portland, Ore., employee named Sydney Satre over a letter she wrote complaining that it wasn’t adequately supporting the Black Lives Matter movement. “It is clear from your letter that you do not support Trader Joe’s nor like working for the company,” her manager wrote in the termination notice. “For this reason, we will be processing your separation from Trader Joe’s effective immediately.” In February the grocery chain sent Ben Bonnema a similar note after he wrote a letter to Chief Executive Officer Dan Bane asking for stricter policies on air filtration and mask-wearing. Like Satre’s, Bonnema’s paperwork opened with this reminder: “Your employment is at will, which means Trader Joe’s may terminate it without cause or notice.”
Trader Joe’s didn’t respond to requests for comment about either case, but its actions diverged dramatically. The company reinstated Bonnema less than a week after he posted his letter on Twitter, where it went viral and caught the attention of several national news outlets. Satre’s firing got some local press coverage, and in March she sued Trader Joe’s for whistleblower retaliation and associational race discrimination. She hasn’t gotten her job back.
