– by Joni Kletter
The world is a mess, and your employees are upset. Whether the issue is abortion, gun violence, COVID restrictions or the war in the Middle East, more and more people are attending political rallies, sending out tweets or posting political messages on Facebook and Instagram. What is an employer to do in this time of outspoken activism? This is really a multi-faceted issue:
Let’s look at what an employer is to do when an employee’s off-duty political activity conflicts with the employer’s values, mission or brand.
New York is an “at-will” employment state which means that an employer may terminate an employee for any reason or for no reason at all so long as it isn’t an illegal reason. What is an illegal reason you ask? Well, certain employees have contract or statutory protection providing that an employer must have “just cause” before terminating an employee; and, all employees are protected from being terminated based on their age, race, gender, national origin, religion, or a whole host of other protected characteristics (thank you New York State and City Human Rights Laws!).
Beyond those protections, employers have wide discretion in deciding whether to terminate an employee. That doesn’t look to be changing any time soon. The New York State Legislature and the New York Court of Appeals have over the years resisted time and time again, any attempts to erode the bedrock “at will” principle. So, let’s say a private-sector employee is seen loudly protesting at a political rally or tweeting in support of a controversial political topic while off-duty. What happens when the employer finds out about this activity and wants to terminate the employee? Does the law in New York protect that employee from being fired?
As an initial matter, the First Amendment to the United States Constitution, which prohibits the government from interfering with the free exercise of speech, would not be implicated: it does not offer job protection to private-sector employees who make statements or donations in favor of causes with which their employers disagree.
The law is surprisingly scant regarding private sector employees’ protections for protesting and political affiliations. However, under New York Labor Law (“NYLL”) § 201-d, it is unlawful for any employer to terminate or discriminate against an employee because of their “political activities” or “recreational activities” that are legal, occur outside of working hours, and off the employer’s premises.[1] The law defines “political activities” as “(i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group.”[2]
Interestingly, one of the primary motivations of NYLL 201-d was to protect smokers and users of tobacco products against extensive anti-smoker vigilantism which began to arise in the early 1990s. In 1992, then Governor Mario Cuomo wrote that the proposed statute properly “[s]trikes the difficult balance between the right to privacy in relation to non-working hours activities of individuals and the right of employers to regulate behavior which has an impact on the employee’s performance or on the employer’s business.”
The question of whether protesting or off-duty political tweets are considered “political activities” protected by NYLL § 201-d remains open-ended. The statute is narrow: defining “political activities” as only the three distinct things outlined above. Notwithstanding, Courts have allowed political activity’ claims to proceed even though the conduct does not fit the strict confines of the three enumerated actions. For example, in 2001, a New York City based employee alleged that the employer fired him because of his participation and arrest during a rally honoring Matthew Shepard, a victim of a hate crime whose death helped usher significant expansions to hate crime legislation. The Appellate Court concluded that the plaintiff’s actions at the rally constituted “political activities” under NYLL § 201-d and were thus protected.[3] Other Appellate Courts have ruled similarly.[4]
The cases cited suggest a willingness on the part of New York courts to protect employees’ political activities and related speech if there is a clear connection between the speech and adverse employment action. Ergo, political protesting or political speech related to a controversial topic or issue could be considered a protected ‘political activity’ under NYLL § 201-d, but the legal guidance is thin.
A note to employers: even if the political or recreational activity threshold is met under NYLL § 201-d, there is a safe harbor provision under 201-d (3) wherein an employer could argue that said protected activity creates “a material conflict of interest” if the speech is related to the employer’s business, giving the employer grounds to terminate the employee. Given the socio-political climate and the proliferation of employees rallying and speaking out on controversial topics, we expect to see more cases being brought under 201-d.
[1] See NYLL § 201-d(2).
[2] “Recreational activities” means “any lawful, leisure-time activity…including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.”
[3] Bilal El-Amine v. Avon Products, Index No. 104350/99, (Sup. Ct. NY Cty 2001), aff’d, 293 A.D.2d 283 (1st Dep’t 2002).
[4] Richardson v. City of Saratoga Springs, 246 A.D.2d 900, 902 (3d Dep’t 1998); Cavanaugh v. Doherty, 243 A.D.2d 92 (3d Dep’t 1998).
A Few Tips for Employers:
Have clear and concise social media policies that are universally applicable. The policy should expressly mention that the employer’s computer system, including its internet, is company property. Staff trainings and guidance are helpful.
– Once the policy is in place, employers should objectively determine whether an employee’s blog, tweets or social media posts violate company policy. Does the expression violate the no-harassment policy? Does it disclose confidential information? Does the speech implicate the NLRA?
– Be consistent in how you treat and enforce policies around hate speech and/or political activism: make sure you are not just punishing one political side or one religious’ group.
– If you become aware of an employee’s potential misconduct, do not make impulsive decisions; take the time to do a thorough investigation.
– Before taking disciplinary action, it is always helpful to contact an employment attorney to discuss your legal options.