NYC Successor Grocers Required to Retain Former Workforce or Join a Union

I serve as the labor counsel to the Ohio Grocer’s Association, so this NYC law is of great interest to Ohio grocers and me.

The New York City Council passed a law that prohibits successor grocery employers from discharging certain grocery store employees without cause during a 90-day transition period following a “change in control.” A “change in control” is defined as “any sale, assignment, transfer, contribution, or other disposition of all or substantially all of the assets of, or a controlling interest in, including by consolidation, merger or reorganization any grocery establishment.”

Only grocery stores where “the sale of food for off-site consumption comprises fifty percent or more of store sales and that exceed 10,000 square feet in size, exclusive of any storage space, loading dock, food preparation space, or eating area designated for the consumption of prepared food,” are covered by this law.  Also excluded from coverage are managerial, supervisory, and confidential employees, as well as any worker who regularly works fewer than eight hours per week. Essentially, the Act protects unionized employees or those eligible for form a union.

Following the 90-day transition period, the successor employer must complete written performance evaluations for each of the retained employees, and maintain a record of such evaluations for at least three years. At the end of the transitional period, successors may, but are not required, to offer such employees continued employment.

Of course, this law does not apply to successor employers who, before a change in control occurs, enters into a collective bargaining agreement covering the eligible employees or, instead, agrees to assume the predecessor’s collective bargaining agreement covering the same employees.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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