COVID sparks more job protection for workers

One of the few bright spots shining through the coronavirus pandemic for employees is the attention directed to greater job security, particularly for lower-level employees who have suffered the brunt of economic hardship due to COVID-19.

A new law going into effect in New York City may constitute a template for providing greater job security for employees, particularly lower-paid ones in states such as Minnesota, where those workers have virtually no rights or remedies available to them.

Extending job-security rights for lower-level employees has been accentuated by their classification as "essential" workers during the pandemic. But the panegyrics to them has not yet been manifested by legal treatment. By law, a majority of them work on an at-will basis, which means that employers have virtually total discretion on how to treat them, including imposing layoffs, furloughs, suspensions or terminations without needing any justification to do so, without any advance notice, and no severance, either.

The rubric used in the law is that at-will employees, which comprise the vast bulk of the workforce, can be discharged or otherwise disciplined for any reason, or no reason at all. This doctrine applies to nearly all workers, with some notable exceptions. Employees in labor unions generally are protected by "just cause" disciplinary provisions in their collective bargaining agreement, limiting the right of management to terminate an employee without some legitimate reason. These workers also have the opportunity to challenge suspensions or terminations through a grievance and arbitration process. Similarly, many public-sector employees, whether in unions or not, have some legal protection under federal and state constitutional provisions or civil service or corollary personnel policies.

A relatively few number of employees, usually high placed in the workplace, have employment contracts containing similar job security provisions. But, for about 75% of the workforce, the "at will" rule applies, here in Minnesota and elsewhere. That tenet allows for virtually unlimited discretion to management to impose discipline on employees at their whim, and the workers lack any protective means to combat those actions, except if the employer has violated some specific statute, such as discrimination and whistle-blowing laws.

Low-level employees bear the brunt of the at-will doctrine, here in Minnesota and elsewhere, especially during the pandemic, as furloughs, layoffs and job terminations have moved them from the workplace into the ranks of the unemployed.

The law, right before the end-of-year holidays, restricts discipline of employees, including layoffs and terminations, without some form of "just cause" or legitimate business-related reason, while providing employees an opportunity to challenge those decisions through a neutral arbitration process. The law also requires advance notice to employees before scheduling changes are made that would affect them.

The law is hardly an all-encompassing panacea. The measure only applies to fast-food employees working at the chains that have 30 or more facilities around the country.

The law has caught fire from a number of sources, including those within the ranks of labor. A management organization has predictably deemed it to be a "devastating blow" to the fast-food industry and potentially other businesses as well. Some labor leaders are skeptical about the law because they fear that it may induce employers to cut back on hiring and accelerate the use of automation in the workplace.

The narrow nature of the measure is not unusual. Laws like this often are experimental, a component of the "laboratory of democracy" concept that encourages state and local units of government to tinker with measures to see how well they work and, if so, how they should be adopted elsewhere.

The New York City measure is not alien to Minnesota, where Minneapolis, St. Paul and Duluth have enacted measures providing for employees to have expanded sick leave and time off for safety-related purposes along with advanced notice of scheduling changes. While challenged in the courts, the ordinances have been upheld, including a decision last June by the Minnesota Supreme Court validating the Minneapolis measure.

Another Minnesota-related overture seeks to extend more rights to low-level employees, particularly those in fast food. When segments within the industry rolled out noncompete agreements for employees, preventing them from freely moving from one facility to another, Minnesota's then-Sen. Al Franken was among those championing a proposal in Congress to bar such restraints. The New York measure could be emulated to expand the rights of other employees around the country. If so, that movement may find fertile ground here in Minnesota.

Marshall Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.