California’s FAST Recovery Act Ties the Employers’ Hands During Termination: Employees enjoy broad protection against Employer Action (Part IV).
The true cost of the FAST Recovery Act:
our freedom.
The FAST Recovery Act now gives employees of franchises more ammunition in discrimination and wrongful termination lawsuits against employers. Of course, employers are ordinarily prohibited from discriminating against or retaliating against employees. However, the FAST Recovery Act now gives employees broad protection by prohibiting employers from taking adverse action against employees who engage in “protected activity” such as the following:
First, if an employee complains or discloses information (or the employer thinks the employee complained or disclosed information) to anyone with authority to investigate, discover, or correct a violation regarding health or safety issues, the employer may not fire, discriminate against, or retaliate against an employee for that reason. This rule is so vague that if the employer believes the employee disclosed or may disclose this information to even the media, anyone in authority at the restaurant, a franchisor, the legislature, a watchdog organization, a community organization, or any governmental agency, the employer may be in violation. In these cases, the employee doesn’t even need to actually make a complaint or disclose any information. The employer merely has to suspect that the employee made such a disclosure or may make such disclosure. As you can imagine, the employee enjoys broad protection.
Second, if the employee instigated or caused to be instigated, testified in, or participated in a proceeding relating to health or safety or any council or local Fast Food Council proceeding, the employer again may not fire, discriminate against, or retaliate against the employee. Again, the phrase “participated in a proceeding” is incredibly vague. It is not hard to imagine instances where the employer is completely unaware as to every employee who participated in a proceeding.
Third, if an employee refuses to work because he or she had reasonable cause to believe that the restaurant practices or premises violate laws, regulations, or any other section in the code (including health standards or safety orders), the employer may not fire, discriminate against, or retaliate against the employee. In fact, the employee is also protected if he or she believes the work would pose a substantial risk to the health or safety of anyone. There is no definition as to what “may” pose a substantial risk to the health or safety of anyone. It is not hard to imagine the disruption a business may suffer if any (or all) employees refused to work.
If an employer does fire, discriminate against, or retaliate against an employee that engaged in any of the above “protected activity,” the damages to the employees are huge. In particular, the employee may be entitled to get his or her job back, three times his or her lost wages and benefits, and his or her attorney’s fees and costs. Clearly, the consequences for the employers have increased exponentially.
Finally, the new law actually creates a rebuttable presumption of discrimination or retaliation if the employer fires or takes any adverse action against an employee within 90 days of when the employer knew the employee engaged in protected activity. In other words, if you know your employee engaged in any protected activity discussed above, you are climbing an uphill battle if you fire or take any adverse action against that employee within 90 days of you finding out about the protected activity. You, as the employer, have the burden of rebutting the presumption of discrimination or retaliation.
Clearly, the FAST Recovery Act purports to help current franchise employees by providing them with a huge hourly wage increase, but it does not address what happens when franchises cut the number of employees due to rising costs. In addition, the FAST RECOVERY ACT ties the franchise owners’ hands in managing their own employees, dramatically increases the cost of doing business, and creates a council of ten new franchise “bosses” who were handpicked by the government to micro manage franchise owners.
In truth, the FAST Recovery Act has an even larger cost: freedom.