[If properly enforced, just cause protections would give all
workers more security to stand up to dangerous working conditions,
sexual harassment, bullying, speed-up, and wage theft.]
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HOW TO GET UN-FIRED  
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Jenny Brown
February 16, 2023
Labor Notes [[link removed]]

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_ If properly enforced, just cause protections would give all workers
more security to stand up to dangerous working conditions, sexual
harassment, bullying, speed-up, and wage theft. _

The Memphis 7, Starbucks workers fired by management in a failed
attempt to stop organizing at their store, were reinstated in
September after the National Labor Relations Board won an injunction.
, Patrick Lantrip/Daily Memphian via AP

 

In a few days Austin Locke will walk back into the Queens, New York,
Starbucks store he was fired from seven months ago. He’ll also get a
wad of back pay, and money from civil penalties.

Locke had a target on his back because he was involved in a union
drive at the store, but his reinstatement didn’t come from the
National Labor Relations Board. Instead, his case was taken up by the
New York City Department of Consumer and Worker Protection (DCWP),
under a city law passed in 2021
[[link removed]] which
makes unjust firings in fast food illegal.

Two recent city laws protecting fast food workers, the 2017 Fair
Workweek Law and the 2021 Just Cause law, have resulted in 230
investigations, resulting in nearly $27.1 million in combined fines
and restitution for more than 20,100 workers, according to Michael
Lanza of the DCWP. Chipotle paid $20 million in September.

Now the city council is considering extending this just-cause
protection to all New Yorkers through the Secure Jobs Act
[[link removed]].

In Illinois, a coalition [[link removed]] of unions
and worker centers is lobbying for a similar law statewide. The
proposed laws also provide for severance pay for layoffs.

Most U.S. workers not covered by union contracts are considered
“at-will employees,” meaning they can be fired for almost any
reason.

There are some important exceptions: It’s already illegal to fire
someone for racist, sexist, or ageist reasons. Labor law also bars
employers from firing workers for engaging in “concerted
activity,” meaning getting together with co-workers to improve job
conditions. But it’s hard to prove intent when a manager
can _legally_ fire you because he doesn’t like your hairstyle or
your attitude.

With just cause laws, which require a due process for terminations,
“the U.S. would just be catching up with the rest of the world,”
said Paul Sonn of the National Employment Law Project. “In many
Canadian provinces, the U.K., Mexico, Colombia, there are systems
where you need to be given a good reason and advance notice, and
typically guaranteed severance pay.”

In surveys conducted by NELP
[[link removed]],
two-thirds of Americans think there should be similar laws protecting
workers.

If properly enforced, just cause protections would give all workers
more security to stand up to dangerous working conditions, sexual
harassment, bullying, speed-up, and wage theft.

But the New York City law indicates it could help workers who want a
union, too. “It’s helpful,” said Locke. “You need to use every
sort of avenue you can to fight these companies.”

Locke was fired for falsely reporting workplace violence and for
missing part of a multipart Covid screening protocol. Video vindicated
him on the first charge and the second had been breached regularly
with no repercussions except in his case.

The complaint process was simple. He said he filed paperwork and the
city did the rest. Starbucks eventually settled, but not before trying
to place Locke at another store. He refused. An NLRB case challenging
his firing was dropped as part of the settlement.

A FIRING STRATEGY

Starbucks management has fired 200 workers in the course of an
organizing wave that started in Buffalo, New York, in December 2021.
So far workers have filed for union recognition in 360 stores and won
in 285.

Starbucks didn’t start firing workers right away, according to Casey
Moore, a Buffalo barista who now works for Workers United, the
division of the Service Employees (SEIU) backing the campaign.

But three months into the union wave, she said, corporate managers
realized, “‘Oh, crap, we have a big problem here,’ and they did
some calculus where they said, ‘Well, we’re going to fire these
workers. We might face legal repercussions, but those aren’t as bad
as the benefit from scaring workers.’”

On February 8, 2022 Starbucks managers in Memphis, Tennessee, called
seven workers in to individual meetings and fired them all on various
pretexts, one of which was that they had held a press conference in
the store.

Beto Sanchez, one of the 7, said he was additionally told he was being
fired for failing to wear a mask while off-duty—although the rule
they cited only required masks while working.

The Memphis workers had gone public with their union drive three weeks
earlier, on Martin Luther King Day. The firings were designed to halt
the drive by removing the majority of the organizing committee.

But it didn’t work. Although Starbucks hired a bunch of new people
in, they still voted for the union, which won overwhelmingly.

“It backfired on them completely,” said Sanchez, a shift manager.
“Starbucks was hoping to use our firings as a way to squash the
fire, to scare people from organizing, but instead it fired people up
to organize even more.”

Soon after the 7 were terminated, Sanchez said, they saw photos of
workers in faraway stores marching on the boss or walking out on
strike holding “Reinstate the Memphis 7” signs.

Other firings took place after union votes, whether the union won or
not. Victoria Conklin, a shift supervisor at the East Robinson store
in Buffalo, was fired on June 22, a week after her store voted to
unionize. She led a walkout one morning when six co-workers called out
due to Covid. At first her manager had allowed them to close the
store, but then he backtracked and required them to fill mobile
orders.

Managers claimed Conklin was fired for being 30 minutes late, once,
weeks earlier. She was late, she said, because she was exhausted from
working too many early shifts and clopenings (closing at night and
then opening in the morning). She had repeatedly asked for a different
schedule and been denied.

Conklin expects an NLRB hearing in mid-April, nine months after her
firing. The delays are because Starbucks is “fighting us every step
of the way,” Moore said.

+++++++++++++++++++++++++++++++++++++++++++

SIDEBAR: Un-fired by Direct Action

There is a faster way to get your job back, and if you and your
co-workers are organized enough, you can do it. After dozens of
workers at three Via 313 pizzerias in Austin, Texas, came down with
Covid in January of 2022, 43 workers signed a petition requesting sick
pay and stricter Covid safety. Seven of them then presented it to
management.

One member of the delegation, Henry Epperson, had to forgo two weeks
of pay when he had Covid. The day after the petition was presented, he
said, an upper-level manager showed up at work and pointed out workers
who had been in the meeting. Five of the seven were suspended. “They
claimed we were being hostile to the person we delivered the petition
to,” said Epperson.

The workers quickly spread the word and held a demonstration which got
substantial press coverage. They gave the press their audio recording
of the meeting which “tarnished the company’s claim that we were
being aggressive,” Epperson said.

Customers informally boycotted the stores, and flooded the company’s
social media channels with criticism. The publicity caused the stores
to walk back the suspensions within a week and provide back pay.

Months later, the workers went public with a union organizing drive,
and won an election in one of the stores with the
independent Restaurant Workers United
[[link removed]].

(For another inspiring example, see this article 
[[link removed]]by
Amazon air hub worker Sara Fee on how she was reinstated after her
co-workers raised a ruckus, including wearing stickers saying “Where
is Sara?”)

++++++++++++++++++++++++++++++++++++++++++

ONE MILE OUT

Joselyn Chuquillanqui is still waiting for justice, too. She was fired
July 27, three weeks after Locke, because she was a leader in the
organizing effort at her Starbucks store in Great Neck, just outside
New York City. “Even one more mile in, I would have had just cause
to protect me,” she noted.

The whole Great Neck store signed union cards and they went public in
February 2022. But after management conducted a ferocious anti-union
campaign, the union lost by one vote. After that, “I had known [my
manager] was trying to fire me and was just waiting for an
opportunity,” Chuquillanqui said. She was eventually fired for
losing her key (she reported it and followed protocol) and for being a
few minutes late.

The NLRB process is cumbersome and only works if workers can prove
they were fired for taking collective action. It also depends on
judges who may identify with management. And unlike the New York City
law, there is no provision for punitive damages against outlaw
employers, only back pay.

Starbucks also regularly opposes fired workers’ unemployment claims.
Chuquillanqui had to fight to get her unemployment checks.
“Starbucks tried to appeal twice,” she said. “They were just
trying to run me dry with my resources.” She finally won her claim.

Conklin appealed a negative unemployment decision and eventually won,
too. But Sanchez said Starbucks blocked the Memphis 7 from receiving
unemployment compensation.

ORIGINS IN FIGHT FOR $15

The Just Cause law in New York was championed by SEIU and followed
logically from the Fight for $15. Fast food companies in New York City
are now required to pay $15 an hour, but they still inflict unstable
schedules on their workers, negating the benefits of higher pay.

To curb abuses, SEIU mega-local 32BJ worked with fast food workers to
pass a city Fair Workweek Law in 2017, which requires two weeks’
advance notice of schedule changes and premium pay when there are
violations. Similar laws are in force in San Francisco and Seattle.

Fair Workweek posters are required
[[link removed]] in
every fast food joint. Locke said his managers “hoped nobody reads
the poster.” He pointed it out to co-workers, but even with the
premium pay schedule listed in black and white, it was another matter
to get management to pay up.

The money is significant. For example, the law provides $45 if you are
given less than a week’s notice of reduced hours. There’s a $100
premium for clopening, and you can refuse the shift. In September,
Chipotle agreed to pay $20 million to 13,000 New York City Chipotle
workers for workweek violations under the law. The workers at the
chain are organizing with help from 32BJ.

The fast food Just Cause law passed in 2021 was intended to give
workers some backup when they demanded their scheduling rights and
premium pay. The bill also provides penalties for involuntary cuts in
hours—a loophole in the Fair Workweek statute.

The Just Cause law says that after you have passed your 30-day
probationary period, you can only be fired after you get warnings, an
opportunity to improve, and retraining. (There are exceptions in cases
where a worker endangers co-workers or the public.) And if your firing
was unjust, you can be reinstated with back pay.

“Reinstatement is the key to making these laws useful in
organizing,” said Rand Wilson, a longtime just cause advocate who
currently works for Teamsters for a Democratic Union.

Montana is the one U.S. state with a just-cause law. Wrongly fired
workers there can win up to four years of back pay and recover legal
fees, but they “never had reinstatement, so their just cause is not
so great,” Wilson said. “If you can march somebody back into work
after they’ve been fired, they will feel a lot different about the
union.”

POWER OF REINSTATEMENT

That power was on display when the Memphis 7 won reinstatement in
September. Starbucks’ actions were so egregious that the NRLB asked
a judge to order them hired back while other aspects of the case
continued through the courts.

“It’s pleasant to know they’re taking it seriously, and not
listening to Starbucks’ whining,” Sanchez said. Their back pay
case is still pending.

When they got reinstated, Sanchez said, there was an uptick in filings
at other stores, “because people saw, hey, these people got their
jobs back.”

Sanchez noted that the NLRB is understaffed, just like Starbucks
stores, and that has led to delays. Still, the cases grind forward.
“We’re getting them little by little. Each of them have their
court dates. We’re just very ready for them to all get their jobs
back.”

In Buffalo, Conklin said if her NLRB decision is favorable and she is
offered reinstatement, “I would definitely go back. I want to look
them in the eyes: I’m not leaving, and there’s nothing you can do
about it.”

+++++++++++++++++++++++++++++++++++++++++++

SIDEBAR: Some Unions Don’t Like It

“Just cause” is a feature of most union contracts, but if you
don’t have a contract, U.S. law allows your employer to fire you
without reason or warning.

Precisely because union contracts are the only way most workers gain
job security, some unions are unwilling to support just cause laws.
“It’s considered a selling point in a union contract, and a law
would undermine what we’re selling,” said Rand Wilson. The unions
leaders “see themselves as insurance salesmen.”

But as with health care, it turns out that failing to extend what
unions have won to the non-union workforce doesn’t help people join
unions so much as it lowers standards for everyone
[[link removed]] and
makes it harder for unions to hold onto what they’ve won. According
to retired union lawyer Robert Schwartz, employers are
increasingly attacking
[[link removed]] the
basic job security protections in contracts.

On top of that, the “union difference” increases incentives for
employers to keep unions out at all costs.

In New York, 32BJ was the main local campaigning for just cause in
fast food. Some other unions looked askance, said people involved in
the campaign. The Illinois Employee Security Act has received support
from SEIU, the Chicago Teachers Union, Cook County College Teachers,
Transit (ATU) Local 308, and the United Electrical Workers (UE).

Besides 32BJ, the proposed Secure Jobs Act in New York City has
garnered support from the Communications Workers, Teamsters Local 804,
and Auto Workers Region 9A, as well as worker centers and immigrants
rights groups. The campaign
[[link removed]] officially launched January 23.

The city’s Democratic Socialists of America chapter is currently
canvassing door to door for the Secure Jobs Act.

+++++++++++++++++++++++++++++++++++++++++++

_JENNY BROWN [[link removed]] is an
assistant editor at Labor Notes._

_LABOR NOTES is a media and organizing project that has been the voice
of union activists who want to put the movement back in the labor
movement since 1979. For four decades Labor Notes has offered
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Notes delivers the best labor news and analysis available. A must
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