Can your boss fire you from your private sector job because you actively campaigned for a Democrat candidate (e.g., Hillary Clinton) or Republican candidate (e.g., Donald Trump)? This is a timely topic given that it’s election season and politics are often discussed at work. In general, the short answer is no. This blog discusses Section 201-d of New York Labor Law sometimes colloquially referred to as the Lawful Recreational Activities Law.
Our Award Winning New York Employment Attorney has advised and counseled clients on their off duty activities and the right to be free from discrimination.
Section 201-d expressly states that employers cannot discriminate against an employee for “legal recreational activities outside work hours.” The term “recreational activities” is defined as “any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.” Some examples of recreational activities can include smoking cigarettes, hunting or protesting. The law also protects an employee’s right to engage in legal political activities. It is important to note that the answer to the question posed above would be different if the employee was campaigning for a candidate at work because in order for the protections for the law to apply the recreational activities must occur off work premises, outside of work hours and without use of the employer’s property (e.g., copy machines).
Employees’ off-duty conduct and choices become employment issues whenever employment decisions are based upon them, rightly or wrongly. Whether such decisions are lawful or unlawful will depend upon various factors and may not be protected under certain circumstances such as:
- If it creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest and violates the terms of an agreement;
- For certain public employees, if the activities potentially conflict with employees’ performance of their official duties; or
- If the activity is in knowing violation of a provision of a collective bargaining agreement or other written agreement concerning ethics, conflicts of interest, potential conflicts of interest, or the proper discharge of official duties.
If an employee makes an employment decision upon off-duty conduct which leads to the assertion of some legal claim, then it may become incumbent upon the employer to show some nexus between the off-duty conduct and the character of the employment or the employer’s legitimate business interests. This argument may not apply in every case. Conduct outside the workplace which is merely something the employer does not like is less likely to be seen as a legitimate ground for termination or discipline. However, if the off-duty conduct does not fall within the protections described above and harms the employer’s reputation, or causes others to question doing business with the employer, or makes it difficult for the employer to function efficiently or direct its workforce, then a resulting employment decision will more likely be viewed as legitimate.
Each situation is different and the applicable laws can vary based on the circumstance. If you have any concerns or questions with regard to your off-duty activities potential impact on your employment, contact our New York Employment Attorney for a confidential consultation. We will listen to your story and determine if you have a legal claim and present you with your options.
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