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Fairer Labor Laws Would Prevent Getting Fired for ‘Not Smiling Enough’

A fast-food worker chants during a demonstration outside a Burger King. (AP Photo/David Goldman)

“It was a Wednesday night,” Francis Gomez recalls of the incident she says led to her losing her job at a Taco Bell near her home in New York’s Queens neighborhood. A delivery driver, aggravated that his order wasn’t ready, yelled at her and put his hands near her face. “I’m used to men coming in and trying to attack me, so I walk away because I know it’s going to escalate.” Gomez backed away and clocked out. Her supervisor, she says, did not step up to support her. When she returned for a shift the following week, she learned she had been fired. (Taco Bell did not respond to requests for comment.)

Gomez’s story highlights the precariousness of fast-food jobs. In a new survey of 539 New York City fast-food workers, 65 percent of respondents said they had been fired without explanation at least once. Half had either been terminated or forced to quit due to intolerable working conditions. The findings are in a February report, “Fired on a Whim,” by four worker advocacy groups, the Center for Popular Democracy, Fast Food Justice, 32BJ SEIU and the National Employment Law Project. The groups point to “at-will” employment as a cause for workers’ instability. They want to see New York City enact “Just Cause” policies that would protect fast-food workers, a group that has already succeeded in helping to change minimum wage laws in cities around the U.S. through the Fight for $15.

“At-will” employment, the labor law of the land in every U.S. state except Montana, means employers can terminate a worker for any legal reason at any time. (Firing a worker because of religion or gender are examples of illegal reasons.)

In “Fired on a Whim,” one woman says she was fired over her long nails. Another says she lost her job because she didn’t smile enough. A third, who was dealing with domestic violence, lost her job because she arrived late once.

“U.S. employment law tends to tilt power in favor of management,” says New York City Council Member Adrienne Adams. “No matter how you slice it, this is still extremely unfair to very hard-working New Yorkers, particularly people of color, immigrants, women, [who] have been victimized by the at-will law.” According to the Fiscal Policy Institute, the people filling the fast-food industry’s lowest-paid ranks in New York City are largely women and people of color.

Adams is a co-sponsor of a bill introduced in council in February that would require fast-food chains to have a “bona fide economic reason,” such as a drop in sales or a closing, to dismiss an employee. Another February bill would mandate that the restaurant chains provide a reason for firing and establish a consistent disciplinary system. (Most respondents in the fast-food worker survey said that performance standards weren’t applied equally to all employees, and the report’s authors suggest that racial and gender bias are behind that unevenness.)

Adams says she has two daughters who have struggled with another practice identified in “Fired on a Whim” that’s disruptive to employees’ lives: sudden reductions in the number of hours assigned. Nearly 60 percent of those surveyed reported experiencing a significant loss in the number of hours. The average loss was 14 hours per week, or roughly one-third of the worker’s income.

According to “Fired on a Whim,” fast-food workers in New York City earn on average $21,700 annually, roughly two-thirds of the New York City poverty threshold for a family of four. Low-income workers such as fast-food workers often have few assets to help them cope with the loss of a job or a significant reduction in hours. An “at-will” firing can push a person or family into homelessness. “What we found in the fast-food industry is really quite acute,” says Leo Gertner, of the National Employment Law Project. “Turnover in some cases is 100 percent.” Gertner says that employers also “dodge” regulations by keeping workers’ hours below the level where they would have to pay healthcare or other benefits.

From “Fired on a Whim,” by the Center for Popular Democracy, Fast Food Justice, 32BJ SEIU and the National Employment Law Project

The fast-food industry is critical of the New York City legislation.

“Unfortunately, New York seems intent on creating a challenging environment for businesses,” Matt Haller, of the International Franchise Association, said via email. “Franchise small businesses work to provide career development and economic opportunity in their local communities, often on razor-thin margins. Adopting this new, misguided proposal will make it incredibly difficult for these businesses to operate.”

Gertner believes the policies would help fast-food chains in the long run. “It’s going to promote better job security and better training,” says Gertner, “and that should reduce turnover, and lots of studies show that reducing turnover is a huge cost savings for companies.”

A spokesperson for the National Restaurant Association says the “Just Cause” proposals are “burdensome and discriminatory” and “would greatly impact operations of New York City restaurants.” The spokesperson adds that they contravene New York’s existing labor laws.

Organizing workers and labor unions are likely to play a central role in the push for “Just Cause” policies in New York City and beyond, after their minimum wage victories of the last several years. A 2018 study found that the lowest-income earners in the U.S. had the strongest wage growth, likely a result of $15 minimum wage policies implemented in a number of cities.

“Fast-food workers have been at the forefront of a lot of our most exciting and vibrant movements for social and economic justice,” says Rachel Deutsch, of the Center for Popular Democracy. These movements, she says, could “start changing the conversation more broadly, particularly [with] low-wage workers or industries that rely heavily on women, people of color and immigrants.”

Zoe Sullivan is a multimedia journalist and visual artist with experience on the U.S. Gulf Coast, Argentina, Brazil, and Kenya. Her radio work has appeared on outlets such as BBC, Marketplace, Radio France International, Free Speech Radio News and DW. Her writing has appeared on outlets such as The Guardian, Al Jazeera America and The Crisis.

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Tags: jobsminimum wageunionsrestaurants