In the age of social media, all New York employees need to be cognizant of the fact that their off-duty activities may be monitored by employers. In some cases, employers may come under public pressure to discipline or fire an employee based on statements or actions he or she takes outside of work. As an employee, you need to be aware of how New York employment law does and does not protect you in such cases.
This subject recently came to national prominence following a series of white nationalist rallies in Charlottesville, Virginia. Several individuals who participated in these events returned home to find they had lost their jobs. For instance, a South Carolina man was fired after the media circulated pictures of him protesting next to another white nationalist demonstrator, who was later charged with second-degree murder after allegedly killing a counter-protester, and his employer received several complaints.
New York Protects “Political” and “Recreational” Activities
As a general rule, the First Amendment does not protect you from adverse employment actions in the private sector. In other words, while the government cannot punish you for engaging in political speech, no matter how controversial or offensive it may be to others, a private employer is free to discipline or fire you as it sees fit, within the bounds of any employment contract you may have. While federal law prohibits discrimination based on race, sex, national origin, age, and disability (among other things), there is no such protection for political affiliation or participation in public rallies.
That said, New York State law does bar “discrimination against the engagement in certain activities.” Under Section 201-d of the New York Labor Code, an employer may not take adverse action against an employee based on that individual's “political activities outside of working hours, off of the employer's premises and without use of the employer's equipment,” provided the activity itself is legal. This only applies to activities related to the actual seeking of public office. For instance, your employer could not fire you because you support a particular candidate in an election or attended a fundraising event for a political party.
Section 201-d also protects employees from discrimination based on participation in “recreational activities,” such as “sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.” This could conceivably cover participation in broader events like a political rally. According to Eugene Volokh, a noted First Amendment scholar, New York judges have included “arguing about politics at a social function and participating in a vigil for a man killed because of his homosexuality” under the banner of “recreational activities.” But Volokh notes other New York courts have said that acts like “picketing” are not “recreational.”
Have You Been the Victim of Illegal Job Discrimination?
In short, employees are expressly protected under New York State law when directly participating in the electoral process. At the same time, you need to tread carefully when participating in non-election related events that may attract media attention and controversy. If you believe you have been the victim of any kind of illegal workplace discrimination, you should speak with a qualified New York employment attorney as soon as possible. Call the Law Offices of Mahir S. Nisar in Long Island or New York City today at 800.496.3076 if you need immediate legal assistance.