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New Legislation Reduces At-Will Protections: Why It Matters

On July 5th, 2021, New York City amended language in the Fair Work Week Law, adding new protections against arbitrary terminations within the fast-food industry. While the current law only addresses one industry, it is not uncommon to see laws expand to include other industries and sectors, and it's best to be prepared in case this occurs.

Protections include:

  • No firing after a 30-day probation period without just cause.

  • No layoffs unless the employer is closing or reorganizing due to a downturn in business. Layoffs must be in reverse order of seniority and laid-off employees have priority to work available shifts.

  • Written explanation from the employer for firing, reduction of hours, or layoff.

What does this mean for At-Will Status?

At-will employment states that an employer can terminate an employee without cause with exceptions for instances that would be considered unlawful or protected by contracts. For the fast-food industry, these amendments weaken the definition of at-will status. While this amendment only affects a portion of hourly, non-exempt employees in New York City, it highlights a need for all organizations, regardless of industry or sector, to ensure performance management measures are in place.

At-will status can be utilized as a reason for some terminations, which can occur with little to no notice. However, we recommend that formal separation conversations occur as a final element in continued dialogue. Unless a termination is the result of a violation of company policy or egregious conduct, there should be other documented examples of poor performance that have been discussed with an employee. Challenges to unemployment claims and lawsuits for wrongful termination can be easily addressed when there are documented conversations about performance that led to a decision to terminate. Doing so would prevent any need for initiating terminations based on at-will status, which can sometimes lead to unnecessary challenges and litigation.

How can I Implement Performance Management Processes?

The Society of Human Resource Management (SHRM) defines performance management as the broad collection of activities designed to maximize individual and, by extension, organizational performance. It includes setting expectations, measuring employee behaviors and results, providing coaching and feedback, and evaluating performance over time to use in decision-making. These elements are often introduced at the beginning of employment and have processes that support employee performance until they transition out of the organization. Some components to consider are:

  • Establishment of goals: Goals can be defined by duties described on the job description or outlined in projects as well.

  • Performance reviews: reviews allow for employee performance to be compared against established goals and expectations. There are many systems, platforms, and formats to facilitate this process. Review formats and cadences vary, and research should be performed before implementing in an organization to ensure proper fit.

  • Performance Improvement plans: When performance isn’t meeting expectations, a detailed plan highlighting areas that need improvement and potential consequences if improvement isn’t achieved within a designated period of time. This is the first step in a progressive discipline process, where if performance isn’t improved, additional conversations may occur until a decision to terminate is made.

At Kiwi Partners, we have found that organizations are more successful with implementing and maintaining performance management systems when all components mentioned are included. Other factors to consider are support from the executive leadership team and adequate training for staff who supervise other employees. Creating a performance management system can feel like challenging task. However, there are agile methods and platforms that can make implementation much easier.

If your organization is considering implementing a performance management system, please contact the HR Services team at Kiwi Partners. We can assist with finding the right system and processes for your organization and budget.


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