at-will employment - Horton Management Law

As 2020 (finally?) comes to an end, we again look at the most viewed New York Management Law Blog posts from this year. Did you miss any of the top posts of 2020?

These posts reflect some topics that most interested New York employers in 2020. Do they also suggest what will be top of mind in 2021?

Curious about last year? Click to see what posts made the list in 2019.

Coronavirus

We never saw this coming, but most of 2020 was spent addressing issues related to the COVID-19 pandemic. This generated numerous posts on closing and reopening requirements specific to various industries. But the most viewed were those that applied across the board.

Both the federal government and New York State implemented COVID-19 related leave laws in March. We discussed them here:

Congress: Some Employers Must Give Paid COVID-19 Leave

New York State Creates COVID-19 Quarantine Leave for Employees

Once non-essential businesses were able to reopen in New York, they had to have a COVID-19 safety plan. This requirement remains in place as of year-end. Here’s our popular Closer Look at the COVID-19 New York Safety Plan Template.

2021 New York Minimum Wage

Our annual post reminding employers of increases to both minimum wage and the salary threshold for overtime exemptions under state law remained a must-read.

Remember, these changes take effect on December 31, 2020, not January 1st. If you haven’t adjusted accordingly yet, now’s the time!

Some required pay levels will continue to rise in the coming years. This post includes charts showing those planned increases.

New York Paid Sick Leave

Perhaps spurred by the coronavirus pandemic, New York passed a universal sick leave law affecting all private-sector workplaces in the state. The law grants all non-government employees sick leave starting January 1, 2021. Many will be eligible to receive paid leave of up to 40 or 56 hours based on company size.

This post provides the basics of the new leave obligations.

The New York State Department of Labor provided initial guidance on the law through FAQs, discussed here. The DOL recently proposed regulations that are subject to a 60-day comment period. We plan a follow-up post when the regulations become final.

We also presented a webinar for employers on the New York Paid Sick Leave law. You can watch the recording here:

Other New York Developments

Our readers were also interested in more targeted New York employment law changes.

In 2019, the State expanded its paid voting leave requirements. Apparently perceiving the shift as too burdensome on employers, the law was amended back in 2020.

The NYS DOL also took action to reduce and eventually eliminate tip credits toward minimum wage outside of the hospitality industry. The phaseout will be complete as of the end of 2020. Read more here.

How Far Will New York Go?

In the 2019 top posts article, I predicted that New York would continue to regulate the workplace more in 2020. I couldn’t have predicted the COVID-19 outbreak and related restrictions, but the paid sick leave law alone was a gamechanger.

Two items I mentioned a year ago that didn’t get enacted in 2020 may be back on the table sometime in 2021.

In 2019, the Legislature passed a bereavement leave bill that Governor Cuomo vetoed. The Legislature now has enough Democratic votes to override a veto if they want to,

And after previous close calls, might workplace bullying get over the hump next year?

Plus, New York City is eliminating at-will employment for fast-food workers. Could that development spread statewide? Beyond the fast-food industry?

Don’t Stop at the Top Posts of 2020!

I hope you find it helpful to look back at what happened last year, but you should also look forward. For some of the reasons stated above, and others, 2021 could be another big year in employment law. Please continue to follow the New York Management Law Blog for updates.

One great way to keep up with emerging topics in New York labor and employment law is to subscribe to our monthly email newsletter. If you want more frequent news and insights, be sure to follow us on LinkedIn!

See you in 2021!

Should We Throw Out At-Will Employment?

No. At-will employment is still a fundamental premise for the employment relationship.

If nothing else, it places the burden on the employee to prove that their employer violated their individual rights. This helps prevent meritless litigation.

But there is more. It also establishes that any employment is of an indefinite nature by default. That’s the primary reason why its important for employers to reference at-will employment in offer letters, employment contracts, and employee handbooks. Although not always necessary, reciting the at-will employment rule helps eliminate any doubt whether the employment was intended for a specific term.

How Then Is At-Will Employment a Myth?

Fair question. Why do lawyers both emphasize at-will employment and downplay it at the same time?

Basically, while it doesn’t provide much, at-will employment is still the most flexible starting point for employers.

Despite “at-will employment,” an array of employment discrimination laws now place many restrictions on reasons why employers CAN’T fire someone. But there are still a nearly infinite number of reasons why you CAN separate an employee.

Employers can further yield their discretion to end the employment relationship. This is done through contracts–typically, either employment agreements with individual employees or collective bargaining agreements with unions representing groups of employees.

One prevalent contractual limitation on employers’ power to end employment is the “just cause” or “for cause” requirement. Most employers only offer “just cause” protection when they have diminished leverage or increased motivation to satisfy the employees.

These protections are virtually automatic (though not mandatory) components of union contracts. There they are often undefined, with “cause” left to an arbitrator’s discretion.

Some employment agreements also replace “at-will” employment with “for cause” protection. These contracts (especially for higher level employees) often include a definition of what constitutes cause. However, even those definitions are sometimes relatively vague. For example, “cause” may include “poor performance” or “gross misconduct,” terms that are subject to interpretation.

Note: Many public (i.e., governmental) employees obtain constitutional, and often statutory, protections against arbitrary employment terminations. However, some categories of public employees will still default to at-will employment.

Don’t Play the At-Will Employment Card!

Even assuming an employee does technically have at-will employment, it’s risky to wave that around as the basis for discharge. You should always have a better reason than no reason!

In reality, every employer (a) has a reason and (b) knows the reason before they get rid of an employee. Pretending otherwise isn’t believable. So, if you tell the employee, “You’re employed at will, so we don’t have to tell you why you’re being fired,” they will hear, “We don’t want you to know why you’re being fired.” Some will then interpret this to mean, “We can’t tell you why you’re being fired, because it’s an illegal reason.”

So (unless, I suppose, you’re firing an employee for an illegal reason) you probably want to at least clue them into what the real reason is. Sure, there could be a situation where the specifics of a valid termination decision are confidential state secrets. But those are rare, and there’s still a way to deliver a better message than “Because . . . AT-WILL EMPLOYMENT.”