Could N.Y. Companies Fireplace Workers for Utilizing Parler and Gab? –

Newsweek (Meghan Roos) reports:

The president of a literary agency [the Jennifer De Chiara Literary Agency] The New York City-based employee shared on Twitter Monday that an agency employee was fired after her use of the conservative social media sites Parler and Gab was discovered.

Is that legal

The first change does not apply to private employers according to their regulations. It is called “Congress shall …”, which applies generally to the federal government; The fourteenth amendment, which begins with “no state,” applied this to state and local governments. But just as private dismissals based on religion or race do not violate the freedom of exercise or equal treatment clause, private dismissals based on language do not violate the freedom of expression clause.

But they could break the law. For example, federal law generally prohibits private employers with 15 or more employees from dismissing people on the basis of their race and religion. Many state laws do the same for smaller employers. And a significant number of states prohibit dismissals for certain types of speech or political activity, although the rules vary from state to state (and sometimes even by city and county) and are often quite vague.

I discussed these laws in a 2012 article (and Utah has passed new law since), but now let’s turn to New York law. Let us assume that the article correctly describes Oefelein as an employee; The law may not apply to certain types of independent contractors. (Whether or not New York law applies to an employee who appears to be working from Alaska is an interesting question I’ll put aside for now. It would likely cover various details of the employment relationship, including whether the employment contract provides for the New application York Law. Alaska has no such worker protection law.)

New York prohibits employer retaliation for off duty “recreational activities”, including but not limited to “reading and watching television, movies and similar materials.”

(2) Unless otherwise provided by law, it is unlawful for any employer or employment agency to refuse recruitment, employment, licensing, or dismissal from employment, or to otherwise grant any person with respect to compensation, promotion, or conditions or privileges discriminate against employment because of …

(c) a person’s legal recreational activities outside of working hours, outside the employer’s premises and without the use of employer’s equipment or other property …

{“Recreational Activities” are any lawful, unreimbursed, recreational activities that are generally practiced for recreational purposes, including, but not limited to, sports, games, hobbies, exercise, reading, and watching television, movies and similar materials ….}

(3) (a) [This section shall not be deemed to protect activity that] creates a material conflict of interest relating to the employer’s trade secrets, proprietary information, or other proprietary or business interests.

(4) [A]n The employer shall not violate this section if the employer takes action based on the belief that: … (iii) the individual’s actions have been deemed illegal by an employer or previous employer or a habit of poor performance, incompetence or Represent misconduct.[1]

A separate part of the Statute specifically protects a limited number of party political activities (“(i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fundraising campaigns for the benefit of a candidate, political party, or a political interest group “); The question is whether protection for “recreational activities” includes political comments on social media that fall outside of these narrow categories.

Unfortunately, the answer is not clear. Indeed, court decisions have treated “recreational activities” as though they were arguing over politics in a social function[2] and take part in a vigil for a man killed for his homosexuality.[3] If “reading and watching TV, movies and related material” is a pastime, why shouldn’t writing and posting material on a social media platform be a pastime too?

However, a court ruled that pickets were not enough “free time” to qualify.[4] Other New York courts have also ruled that certain activities outside of language – dating[5] and organization and participation in “after-work parties with colleagues”[6]- which can normally be considered as a leisure activity is not covered by the law. This suggests that “leisure activities” in some language cases could also be read closely.

Nor is it clear how the “without use of employer’s equipment or other property” exception would work here. There would be a factual question: For example, did the employee use a company-issued phone or computer? And there may be a legal question: How should company-issued equipment that is expected to be used in the home for personal use in addition to business purposes be legally treated? I don’t know of any cases where this is being investigated.

What about the exception of activities that “create a material conflict of interest relating to an employer’s trade secret, proprietary information, or other proprietary or business interest”? Could an employer argue that they allow dismissal of activities that might harm the employer’s business by violating some customers or business partners?

In one case, the exception was seen in the fact that the German tourism office was allowed to fire an employee because he became known as a translator of some revisionist Holocaust articles.[7] The court believed that the activity could lead to public hostility towards the office and that this hostility created a “conflict of interest” between the employee and the employer’s “business interest”. If so, it could apply to any speech or other recreational activity that is sufficiently unpopular. However, in other cases where similar laws are interpreted in other states, a speech is considered protected even if it undermines the employer’s business, such as by insulting customers.

Again, remember that this is the New York Statute. If a similar matter comes up in another state, you must consult the statute in that state (or in some cases, a city or county). And note that nothing speaks of whether these laws are good ideas. Perhaps employers should be able to choose to fire workers for their speech, or political activity, or hobby (or religion, or sexual preference, or race, or whatever). or perhaps language should be treated more like religion, as a basis on which the employer cannot fire an employee (even if religion is quite unpopular); Here I am only talking about what the law is.

[1] NY Lab. Act § 201-d (McKinney 2011) (enacted 1992).

[2] Cavanaugh v. Doherty, 243 AD2d 92, 100 (NY App. Div. 1998) (Treating an allegation that Plaintiff “was fired as a result of discussion during non-work-life activities where her political affiliations became an issue”) as by law covered).

[3] El-Amine v Avon Prods., Inc., 293 AD2d 283 (NY App. Div. 2002) (Confirmation of the rejection of a summary judgment in a case under Section 201-d (2) apparently based on the “plaintiff’s involvement.” a vigil for “is based on Matthew Shepard, the gay student who was brutally murdered in Laramie, Wyoming,” Jennifer Gonnerman, Avon Firing, Village Voice, March 2, 1999).

[4] Kolb v. Camilleri, No. 02-CV-0117A (Sr), 2008 WL 3049855, at * 13 (WDNY August 1, 2008) (“The plaintiff did not picket in his spare time, but in protest. Although the court did so Has found protest to be constitutionally worthy of protection, it should not create simultaneous protection as a leisure activity comparable to “sports, games, hobbies, exercise, reading and television, films and similar material”.

[5] E.g. Hudson v Goldman Sachs & Co., 283 AD2d 246 (NY App. Div. 2001) (“romantic relationships are not protected by ‘recreational activities'”); State v. Wal-Mart Stores, Inc., 207 AD2d 150 (NY App. Div. 1995) (“Dating is completely different from … recreational activity”) (internal quotes omitted). But see ID. at 153 (Yesawich, J., differing) (on the grounds that the dating should be considered covered).

[6] Delran v Prada USA Corp. No. 101691/04, 2004 WL 5488006 (NY Sup. Ct. August 2, 2004).

[7] Berg v German National Tourist Office, 248 AD2d 297 (NY App. Div. 1998); Paul Schwartzman, it’s just not writing[;] German article about hate magazine, Daily News (NY), May 11, 1995, 6.

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