NYC Council Considering Worker “Bill of Rights” Amid COVID-19 Relief Bills

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During its first-ever remote session, members of the New York City Council have introduced a series of bills aimed at providing relief for individuals and businesses affected by the COVID-19 crisis.  The legislative package includes a “NYC Essential Workers Bill of Rights.” Key provisions in the proposal include:

• Premiums for essential workers: This bill would require employers with more than 100 employees to pay premiums to certain essential, non-salaried workers. Workers would be deemed essential if they work for a business that has been so characterized in Governor Cuomo’s business shutdown Executive Orders.  They would be entitled to the following wage premiums: (a) $30 for a shift under four hours; (b) $60 for a shift of four to eight hours; and (c) $75 for any shift over eight hours.  The bill also provides for a private cause of action, penalties and remedies, record-keeping and notice requirements, and a non-retaliation provision.  This premium-pay requirement would cease when Governor Cuomo lifts the COVID-19 state of emergency.
• “Just cause” rights for essential workers: This bill would prohibit all essential employers from firing essential workers without “just cause.”  The employers would be required to implement a progressive discipline policy, defined to mean “a disciplinary system that provides a graduated range of reasonable responses to an essential employee’s failure to satisfactorily perform such employee’s job duties, with the disciplinary measures ranging from mild to severe, depending on the frequency and degree of the failure.”  The bill includes a list of factors to be considered by a court in determining whether a termination was based on “just cause” and places the burden on the employer to prove just cause.  The bill also provides for a private cause of action, violation penalties and remedies, and a requirement for an employer to provide the employee with a written explanation justifying the termination. There is no explicit sunset provision provided in this draft of the bill, though the bill’s reference to Governor Cuomo’s business shutdown Executive Orders in defining “essential worker” suggests that the requirements in this bill will also end when the state of emergency is lifted. 
• Paid sick leave for gig workers: This bill would entitle many independent contractors to receive paid sick leave.  It extends the Earned Safe and Sick Time Act to individuals “providing labor or services for remuneration within the city of New York for more than 80 hours in a calendar year,” unless the hiring entity proves all of the following conditions:
  • the person is free from the control and direction of the hiring entity in connection with the performance of the labor or services, both under the contract for the performance of the work and in fact;
  • the person performs labor or services that are outside the usual course of the hiring entity’s business; and
  • the person is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the labor or services performed.

This bill is not directly related to COVID-19 and has no sunset provision.  Additionally, the bill would apply retroactively, dating back to January 1, 2020.

The Council will hold hearings on these and other bills over the next week and a half.  Seyfarth will monitor these proceedings and continue providing updates regarding this proposed legislation.