On April 22, 2020, during the first-ever remote hearing of the New York City Council (Council), several bills were introduced relating to employment matters and the COVID-19 pandemic. These bills, which have been referred to as the “Essential Workers Bill of Rights,” were sent to committees for further hearings. It is expected that the Council will vote on them in the coming weeks.
This post contains summarizes the pending legislation in its current form.
Job Protection for Essential Workers
Int. 1923-2020 would prohibit employers from terminating, suspending or reducing the hours of essential employees without just cause.
If passed, the law will be enforced through administrative proceedings before the Office of Labor Standards (OLS) or private lawsuits or arbitrations brought by employees. In all cases, the employer bears the burden of proving “just cause” by a preponderance of the evidence. The employer must show that there was “sufficient cause for discharging an essential employee, such as the employee’s failure to satisfactorily perform job duties or employee misconduct that is demonstrably and materially harmful to the essential employer’s business interests.” In determining whether this standard is met, the fact finder must consider the following, in addition to “any other relevant factors”:
- Whether the essential employee knew or should have known of the essential employer’s policy, rule or practice;
- Whether the essential employer provided relevant and adequate training to the essential employee;
- Whether the essential employer’s policy, rule or practice was reasonable and applied consistently; and
- Whether the essential employer undertook a fair and objective investigation.
The bill states that there cannot be just cause for termination unless the employer first resorted to progressive discipline. However, confusingly, the bill’s definition of progressive discipline states that “[n]othing herein shall preclude an essential employer from terminating an essential employee immediately for a failure or misconduct constituting just cause.” We expect that this apparent contradiction will be addressed during the upcoming committee hearings.
Within one week of terminating an essential employee, the employer shall provide him or her with a written explanation of the precise reasons for the termination “including non-hearsay evidence.” According to the bill, the ultimate fact finder may not consider reasons for termination except those stated in the employer’s writing.
If enacted, an employer who violates the law will be liable for the employee’s attorneys’ fees and costs in addition to compensatory damages. The bill also provides for the imposition of civil penalties and an order directing an employer to comply with the law.
Hazard Pay for Essential Workers
Int. 1918-2020 would obligate large employers to pay premiums to certain essential workers that are paid hourly. Specifically, the bill requires essential businesses with 100 or more workers to pay essential workers a premium of $30 for any shift of less than four hours, $60 for any shift of between four and eight hours, inclusive, and $75 for any shift of greater than eight hours.
Businesses covered by this bill include those deemed essential by Governor Cuomo’s Executive Order 202.6, except those that are assigned a NAICS code beginning with 531.
In determining whether a business is large enough to be obligated to pay the required premium, it generally must count all persons performing work for compensation on a full-time, part-time or temporary basis in a given week. Where the number of persons who work for the business fluctuates regularly, the business’ size for 2020 will be equal to the average number of persons who worked per week during 2019.
The bill specifically addresses how a “chain business” must count employees. A chain business is one that is part of a group of establishments that share a common owner or principal who owns at least 30 percent of each establishment where those establishments (i) engage in the same business or (ii) operate pursuant to franchise agreements with the same franchisor as defined in General Business Law § 681. Such a business must count the total number of employees in its group of establishments to determine whether the law applies.
The bill would prohibit anyone from retaliating against an essential employee for exercising his or her right to be paid a premium. It also requires any covered employer, within five days of the law’s enactment, to conspicuously post a notice at any place where essential employees work describing their rights under the law. The notice must be in English and any language spoken as a primary language by at least five percent of the employees at that location.
The bill would also require employers to keep records of their compliance with its provisions for three years.
Expansion of Workers Eligible for Sick and Safe Time
Int. 1926-2020 proposes to amend the New York City Earned Safe and Sick Time Act to extend paid leave to workers that are currently considered ineligible. The bill creates a presumption that a worker is an employee that is entitled to paid leave if he or she provides labor or services within New York City for more than 80 hours in a calendar year, unless the hiring entity can prove that all of these conditions are met:
- The person is free from the control and direction of the hiring entity in connection with the performance of labor or services, both under his or her contract and in practice;
- The person performs labor or services that are outside the usual course of the hiring entity’s business; and
- The person is customarily engaged in an independently established trade or business of the same type as the labor or services that he or she is performing for the hiring entity.
The bill also states that it will not apply to:
- A person who performs work as part of a work experience program pursuant to Social Services Law § 336-c.
- A person who is employed by (i) the United States government; (ii) the state of New York, including any office, department, independent agency, authority, institution, association, society or other body of the state including the legislature and the judiciary; or (iii) the city of New York or any local government, municipality or county or any entity governed by General Municipal Law § 92 or County Law § 207.
- A person engaged in a work study program under 42 U.S.C. § 2753.
- A person compensated by or through a qualified scholarship as defined in 26 U.S.C. § 117.
- An independent contractor who does not qualify as an employee under the test described above.
- An hourly professional employee.
The bill would require employers to provide employees with a notice of their rights under the updated law within 60 days of its enactment.
Resolution Urging State Action Regarding Independent Contractor Classifications
In addition to considering the bills discussed above during its virtual hearing, the Council passed Resolution 1285-2020, which calls upon the New York Legislature to enact a law addressing the misclassification of workers as independent contractors. This Resolution notes that workers classified as independent contractors often lack access to health insurance, paid leave, overtime and other benefits, and that studies indicate that approximately 850,000 low-paid workers are improperly classified.
To address this issue as it relates to employees in the construction and commercial trucking industries, New York previously enacted the Construction Industry Fair Play Act (Labor Law Article 25-B), and the Commercial Goods Transportation Industry Fair Play Act (Labor Law Article 25-C). These laws create a presumption of employment that places the burden of proof on employers to classify workers as independent contractors. The Resolution urges the New York Legislature to require that the same standards be applied to all workers in this state.
Employers only recently digested their obligations under newly enacted emergency paid leave at the state and federal levels. If the Essential Workers Bill of Rights is passed, employers in New York City will have even more studying to do. We will continue to provide real-time updates on the status of this pending legislation.