The Restaurant Law Center and the New York State Restaurant Association have filed a reply brief to the defendant’s brief and accompanying amicus briefs filed in support of New York City’s Just Cause Law. The plaintiffs argue that the law undermines the free market negotiation for collective bargaining agreements, and that the law’s legislative history shows that its goal “was to provide this industry what a union provides.”
As reported previously, in 2021, the city passed regulations that prohibit managers from firing or cutting workers’ hours by fifteen percent “except for just cause or for a bona fide economic reason.” It further requires that layoffs happen in reverse seniority order and demands that previously laid off employees be rehired before new workers.
The plaintiffs filed suit in the Southern District of New York, arguing that this law is preempted by the National Labor Relations Act. The lower court ruled in favor of the city, so the plaintiffs appealed the case to the Second Circuit.
In the reply the Restaurant Law Center and the New York State Restaurant Association reiterate their previous arguments that this law a) infringes on workers’ rights to freely associate, form a union, and collectively bargain and b) violates the Dormant Commerce Clause.
As to the first argument, the plaintiffs’ argument centers on their belief that the Just Cause Law simultaneously substitutes city regulations for collective bargaining agreements, thus discouraging unionization and is written and backed by the Service Employees International Union “in the wake of [their] efforts at unionizing the industry.” They further argue that the extensive worker protections go far beyond the minimum standard allowed by the NLRA, though in doing so, they primarily cite Machinists, in which the Supreme Court ruled that collective bargaining agreements could not force workers to join a union. Per a U.S. Bureau of Labor Statistics report, only 1.6% of private sector restaurant and bar workers are represented by a union.
Regarding the Dormant Commerce Clause, the plaintiffs argue that since the law’s thirty-location requirement only happens to apply to franchises who do business outside the state as well as inside it, the law unfairly benefits local businesses. However; the brief only mentions Pike once, in which the Supreme Court determined that if a law does not unfairly discriminate against out of state business on its face, its incidental “burden[s] imposed on such commerce is clearly excessive in relation to the putative local benefits.” The plaintiffs even argue that the most likely case “may be that no restaurant could bear [the Just Cause Law].”
The Restaurant Law Center and the New York State Restaurant Association are represented by Morgan Lewis & Bockius, LLP.
