NYC Council Introduces NYC Essential Workers Bill of Rights
This week, the New York City Council introduced a “NYC Essential Workers Bill of Rights” as part of a broader COVID-19 relief package. The NYC Essential Workers Bill of Rights is comprised of four bills, which address premium pay and just cause rights for employees working in essential businesses during the COVID-19 pandemic; propose the expansion of sick and safe leave to independent contractors; and advocate a new standard for classifying workers as independent contractors. Although the City Council’s press release indicates that the premium pay for essential businesses will expire at the conclusion of the state of emergency, it does not provide a similar interpretation for the other proposed laws, and the text of the bills themselves are unclear.
Premium Pay for Employees of Essential Businesses: If enacted, this law would require “essential employers” with more than 100 employees to pay premiums to certain non-salaried workers. Employers would be considered essential employers if they permit individuals to work at or for an “essential business,” as defined by the New York State Department of Economic Development in accordance with Governor Cuomo’s March 18, 2020 Executive Order. Eligible employees would receive an extra $30 for any shift under 4 hours, $60 for any shift between 4 and 8 hours, and $75 for any shift over 8 hours. Premium pay would need to be separately noted on the employee’s wage stub. Employees covered by a collective bargaining agreement that expressly waives the provisions of this law and provides a comparable or superior benefit would not be covered by the law. The law provides for recordkeeping and notice-posting requirements, and contains a broad anti-retaliation provision. This law will go into effect immediately if enacted.
Just Cause Discharge for Employees of Essential Businesses: If enacted, this law would prohibit essential employers from discharging an employee who has completed his or her probation period without just cause. “Just cause” is defined by the bill as 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. The bill further states that a termination will not be considered to be based on just cause unless the employer utilized progressive discipline; however, employers would not be permitted to consider any discipline which is over one year old as part of the progressive discipline process. Essential employers would be entitled to utilize a 30-day “probationary” window where the just cause standard would not apply. Within one week of terminating an employee for just cause, the employer would be required to provide the employee with a written explanation of the precise reasons for the just cause termination. There would be three avenues of enforcement of this requirement, including a complex arbitration procedure, administrative enforcement, and a private right of action. In determining whether an essential employer had just cause for termination, the fact finder would be prohibited from considering any reasons not included in the written explanation provided to the employee. The law would not apply to an employee who is covered by a collective bargaining agreement if the CBA expressly waives the provisions of the law and provides a comparable or superior benefit. Similar to the premium pay bill, employers would be considered essential employers if they permit individuals to work at or for an “essential business,” as defined by the New York State Department of Economic Development in accordance with Governor Cuomo’s March 18, 2020 Executive Order. If enacted, this law will go into effect immediately.
Expansion of NYC Earned Sick and Safe Time to Certain Gig Workers: If enacted, this law would expand NYC earned sick and safe time to all persons providing labor or services for remuneration within NYC for more than 80 hours in a calendar year, including independent contractors, unless the hiring entity demonstrates that (1) the person is free from the control and direction of the hiring entity in connection with the performance of the labor or services, both under the contract for the performance of work and in fact; (2) the person performs labor and services that are outside the usual course of the hiring entity’s business, and; (3) the person is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the labor or services performed for the hiring entity. If enacted, the law will be deemed to have been in effect as of January 1, 2020, which likely means that the covered individuals will have been deemed to have been accruing sick time since January 1. It is unclear, though likely, that the City would interpret this as requiring an employer to provide back pay to individuals who could not work for covered sick leave reasons, but were not previously entitled to leave.
Resolution Regarding Classification of Workers: The NYC Council also introduced a resolution urging the New York State Legislature to pass, and the Governor to sign, legislation clarifying the test for classification of workers as independent contractors or employees by extending the test set forth in the NYS Construction Industry Fair Play Act and the NYS Commercial Goods Transportation Industry Fair Play Act to all workers. Those Acts include a presumption of employment in construction and commercial trucking, place the burden of proof on employers to classify workers as independent contractors, and state that an employer may only label a worker as an independent contractor if it can demonstrate that (1) the individual is free from control and direction in performing the job, both under the contract and in fact, (2) the service must be performed outside the usual course of business for which the service is performed, and (3) the individual is customarily engaged in an independently established trade, occupation, profession or business that is similar to the service at issue.
All four bills are currently being debated in committee. We will continue to monitor this legislation and provide updates on their status. If you have any questions about the NYC Essential Workers Bill of Rights, please contact Amanda M. Baker at abaker@fglawllc.com, or any other attorney at the firm.
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