§ 7-629 Bona Fide Economic Discharges.
RCNY § 7-629
(a)A fast food employer that has discharged a fast food employee based on a bona fide economic reason within the previous 365 days must make reasonable efforts to offer such employee reinstatement or restoration of hours before the fast food employer may offer recurring shifts to current fast food employees or hire any new fast food employees in accordance with 6 RCNY § 7-624. A fast food employer is not required to offer temporary (i.e. not recurring shifts) to discharged fast food employees unless no current fast food employee has accepted the shifts and the employer would otherwise hire a new fast food employee to fill them.
(b)A fast food employer must contact eligible discharged employees by email, text, or phone and using the most updated contact information provided by the discharged employee, and must disclose to employees the procedures and contact information it will use in the Notice of Discharge, as discussed in 6 RCNY § 7-628(a)(4). Regardless of the method used, or the number of employees contacted, discharged employees with the most seniority have priority for reinstatement or restoration of hours. Eligible discharged employees shall have seven days to accept an offer of reinstatement or restoration of hours made in accordance with this section. Example: A fast food employer with four locations in New York City, Location A, Location B, Location C, and Location D, closes Location D because sales have been declining. The fast food employer discharges all ten employees at Location D. In the Notice of Discharge, the employer informs each of the ten employees that they will all be informed by email of available shifts at Locations A, B, and C for the next 12 months, and that the employee with the most seniority will have priority to receive any shift awards. Two months later, the fast food employer has several recurring shifts to fill at Location A. The fast food employer emails all employees discharged from Location D. After 7 days, two discharged employees respond requesting all of the available recurring shifts. The employer must award the shifts to the discharged employee with the most seniority.
(c)When a fast food employer is required to notify eligible discharged employees of the recurring shifts being offered, the notice must include the days, times and locations that the shifts will occur; how the fast food employee may notify the fast food employer of their acceptance of the shifts; that the fast food employee has seven days to accept any of the shifts, and, if the same shift is being offered to more than one eligible employee, that the shift will be awarded to the most senior former employee who accepts any of the shifts.
(d)A fast food employer is not required to offer reinstatement or restoration of hours to an employee discharged based on a bona fide economic reason when: 1. the employee was discharged more than 365 days prior, 2. the employee has notified the fast food employer in writing that the employee does not want to receive offers of reinstatement or restoration of hours, 3. the hours would be on specific days or times or at locations that the fast food employee has informed the employer that they are not available to work, 4. the employee has not provided updated contact information and their telephone number and email address on file are no longer operational, 5. the employee has been reinstated to or had hours restored to no less than 85% of the baseline regular schedule they worked immediately prior to the discharge, or) 6. the employee has turned down an offer of reinstatement or restoration of hours to the same regular schedule at the same location that they worked immediately prior to the discharge.
(e)A fast food employer may not condition reinstatement or restoration of hours on a fast food employee's ability to return to work or work the additional hours less than 14 days from the date of the offer. If the fast food employer has a need to fill such shifts temporarily before the discharged fast food employee can begin work, the fast food employer may schedule a current fast food employee to work the shift. Example: In September 2021, the fast food employee at a fast food restaurant location with the least seniority, Christina, was terminated due to a documented reduction in volume of sales. No other fast food employee was discharged. Christina's last regular schedule before her discharge provided that she worked 32 hours per week. In December 2021, two six-hour recurring shifts became available, and the fast food employer offered them to Christina and current employees at her location who were not discharged. Christina accepted the available shifts, as did two other current employees. The employer properly awarded both shifts to Christina, in compliance with the requirement that discharged employees have priority over current employees for awards of available shifts. Thereafter, Christina's regular schedule contained 12 hours. In January 2022, two additional six-hour recurring shifts became available. The fast food employer again offered them to Christina and current employees at her location who were not discharged. Both Christina and one other current employee accepted the shifts. Because Christina's hours were not yet restored to at least 85% of the 32-hour baseline regular schedule she worked before her discharge, the fast food employer was required to award both available recurring shifts to Christina. (Added City Record 5/24/2022, eff. 6/23/2022)
