Want Bargaining Rights With That?

Fast-food workers, cashiers, cooks, delivery people, and their supporters hold a rally outside New York City Hall on May 24, 2017. (Photo: Erik McGregor/LightRocket via Getty Images)

Want Bargaining Rights With That?

“We can now say that New York City is the first place in the country where fast-food workers will no longer be at-will employees."

"Leave. You are fired. No one is essential. Everyone is replaceable here. You are no more than anyone else," Teodora Flores recounts her manager at Chipotle telling her.

Flores, fed up with the daily taunts from her tormenting supervisors, told the latest manager upbraiding her to go ahead and do it.

"Sure, fire me then," she retorted.

Now Flores, fifty-two, who has worked at Chipotle for more than two years, will have "just cause" protection from the capricious managers "who think they are better than crew members" and believe they can fire workers at will.

On December 17, the New York City Council passed two bills enacting a "just cause" law prohibiting fast-food employers from arbitrarily terminating workers. The bills cover fast-food restaurants with multiple locations nationwide, such as Chipotle, Domino's, McDonald's, Burger King, and KFC.

The first bill, known as Introduction 1396, requires that employers lay off their newest workers first on the basis of seniority when layoffs are an economic necessity.

"Getting fired without just cause should not be something any New Yorker has to be afraid of, let alone those who have been deemed essential workers during the pandemic," the bill's sponsor, Queens Councilmember Adrienne Adams, said in a press release after the law passed with forty votes. "The majority Black, brown, and immigrant fast-food workers have been forgotten for far too long."

The other bill, Introduction 1415, sponsored by Brooklyn Councilmember Brad Lander, prohibits fast-food employers from firing or cutting back the hours of their workers without just cause--for example, in the event of economic woes suffered by the employer.

Both bills, which were originally introduced in 2019, build upon 32BJ SEIU's campaign to raise the state's minimum wage for fast-food and airport workers as part of the national Fight for $15 movement.

"We can now say that New York City is the first place in the country where fast-food workers will no longer be at-will employees," said Service Employees International Union, Local 32BJ (SEIU 32BJ) President Kyle Bragg in a press release. The union represents 175,0000 workers across eleven states.

Eighteen-year-old Jeremy Espinal is one of those workers. The son of a SEIU 32BJ porter in the local's commercial division, Espinal has been organizing fast-food workers on the evidence of what having a union card has done for his father: job security, economic stability, and retirement benefits.

Like many people his age, Espinal's first job was in food service. He soon noticed that these were not positions filled solely by high schoolers or college students.

"The majority of workers could be my parents," he says. "They've been working here for ten to fifteen years."

More than 67,000 fast-food workers in New York City will benefit from the new labor laws, affecting 3,000 fast-food restaurants, staffed by a workforce that is nearly 90 percent people of color and two-thirds women, according to the Center for Popular Democracy.

Labor unions have long fought for what is known as sectoral bargaining, which enables unions to set standards for whole industries through multi-employer contracts instead of bargaining with individual employers. Traditionally, unions have boosted their leverage through multi-employer contracts for workers in steel, auto, trucking, construction, and mining. But the 1980s neoliberal onslaught reversed many of these gains. Remnants of sectoral bargaining can still be found in a few sectors like hospitality, but the dominant trend is for unions to be forced to negotiate contracts one worksite at a time.

Under the Trump Administration, the National Labor Relations Board has successfully rolled back Obama-era decisions that expanded protections to workers in "fissured workplaces" who are employed by third-parties, including franchise holders. Many fast-food outlets are owned by franchises, and considered individual worksites.

The City Council legislation overcomes that hurdle by targeting outlets with thirty or more locations in keeping with a Fair Workweek law passed in 2017.

New York City's new "just cause" law comes on the heels of successful efforts in Philadelphia, as Steven Greenhouse points out in The American Prospect. Seattle and Illinois are looking to enact similar legislative changes to add themselves to the list of jurisdictions with these provisions. Besides Puerto Rico and the U.S. Virgin islands, only Montana has just-cause laws on the books.

Critics argue that the bills adversely alter the employer-employee relationship. Eli Freedberg, a restaurant industry labor lawyer, toldThe New York Times the bills "were a prime example of government overreach" and that they "change the entire psyche and underpinning of the American employer-employee relationship."

"It's telling that the restaurant industry believes [its] employer-employee relationship requires workers to have a 'psyche' based on constant terror of arbitrary dismissal," says economist Brian Callaci, an expert on franchising and the fast-food industry and a postdoctoral scholar at the Data & Society Research Institute.

"The new law does not say employers cannot fire workers, it only requires employers to give a valid reason," Callaci continues. "This law is merely the extension of due process rights we all enjoy as citizens [in] the workplace. Employers can motivate employees with carrots--making the workplace a nice place to be, paying decent wages--or the stick of summary termination. The restaurant lobby is saying it refuses the carrot, and only wants the stick."

Workers have also faced a lack of inadequate personal protective equipment and have been bitten by rats at Chipotle outlets in Manhattan and the Bronx.

"They haven't been transparent with who's sick and sick with what," Albert Morales, a worker at a Chipotle in the Bronx, toldJacobin. The conditions got so bad that Morales and his coworkers went on strike when one staff member became infected with COVID-19 and management kept the store open, disregarding the health and safety of workers and customers.

The stark realities fast-food workers face on the job are a reminder that "just-cause" protections are only the beginning of the necessary changes union organizing must fight for to free workers from the stranglehold of economic insecurity.

"I'd like for the pandemic to be over, for things to go back to normal," says Teodora Flores. "Life has been very different this year. We live with anxiety and fear to leave our house."

Thanks to these new laws, New York City's much-anticipated return to normalcy will include greater protections at work.

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