Section 201-d of New York State Labor Law reads as if an employee cannot be
terminated for engaging in recreational activities as follows (2(c)):
"an individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property;"
Kauff McGuire & Margolis LLP also have a description of this Law
on their website (1992)
My reading of this Law says that Randi Lowitt, the Arbitrator who terminated Christine Rubino for Rubino's comments on her 'private' Facebook page while she was at home, may have not abided by this law. I will be sure to post her new decision in the Rubino case after she issues it (Barbara Jaffe,New York State Supreme Court judge who vacated Lowitt's decision of termination). § 201-d. Discrimination against the engagement in certain activities.
1. Definitions. As used in this section:
a. "Political activities" shall mean (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;
b. "Recreational activities" shall mean 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;
c. "Work hours" shall mean, for purposes of this section, all time,
including paid and unpaid breaks and meal periods, that the employee is
suffered, permitted or expected to be engaged in work, and all time the
employee is actually engaged in work. This definition shall not be
referred to in determining hours worked for which an employee is
entitled to compensation under any law including article nineteen of
this chapter. 2. Unless otherwise provided by law, it shall be unlawful for any
employer or employment agency to refuse to hire, employ or license, or
to discharge from employment or otherwise discriminate against an
individual in compensation, promotion or terms, conditions or privileges
of employment because of:
a. an individual's political activities outside of working hours, off
of the employer's premises and without use of the employer's equipment
or other property, if such activities are legal, provided, however, that
this paragraph shall not apply to persons whose employment is defined in
paragraph six of subdivision (a) of section seventy-nine-h of the civil
rights law, and provided further that this paragraph shall not apply to
persons who would otherwise be prohibited from engaging in political
activity pursuant to chapter 15 of title 5 and subchapter III of chapter
73 of title 5 of the USCA;
b. an individual's legal use of consumable products prior to the
beginning or after the conclusion of the employee's work hours, and off
of the employer's premises and without use of the employer's equipment
or other property;
c. an individual's legal recreational activities outside work hours,
off of the employer's premises and without use of the employer's
equipment or other property; or
d. an individual's membership in a union or any exercise of rights
granted under Title 29, USCA, Chapter 7 or under article fourteen of the
civil service law.
3. The provisions of subdivision two of this section shall not be
deemed to protect activity which:
a. creates a material conflict of interest related to the employer's
trade secrets, proprietary information or other proprietary or business
interest;
b. with respect to employees of a state agency as defined in sections
seventy-three and seventy-four of the public officers law respectively,
is in knowing violation of subdivision two, three, four, five, seven,
eight or twelve of section seventy-three or of section seventy-four of
the public officers law, or of any executive order, policy, directive,
or other rule which has been issued by the attorney general regulating
outside employment or activities that could conflict with employees'
performance of their official duties;
c. with respect to employees of any employer as defined in section
twenty-seven-a of this chapter, is in knowing violation of a provision
of a collective bargaining agreement concerning ethics, conflicts of
interest, potential conflicts of interest, or the proper discharge of
official duties;
d. with respect to employees of any employer as defined in section
twenty-seven-a of this chapter who are not subject to section
seventy-three or seventy-four of the public officers law, is in knowing
violation of article eighteen of the general municipal law or any local
law, administrative code provision, charter provision or rule or
directive of the mayor or any agency head of a city having a population
of one million or more, where such law, code provision, charter
provision, rule or directive concerns ethics, conflicts of interest,
potential conflicts of interest, or the proper discharge of official
duties and otherwise covers such employees; and
e. with respect to employees other than those of any employer as
defined in section twenty-seven-a of this chapter, violates a collective
bargaining agreement or a certified or licensed professional's
contractual obligation to devote his or her entire compensated working
hours to a single employer, provided however that the provisions of this
paragraph shall apply only to professionals whose compensation is at
least fifty thousand dollars for the year nineteen hundred ninety-two
and in subsequent years is an equivalent amount adjusted by the same
percentage as the annual increase or decrease in the consumer price
index.
4. Notwithstanding the provisions of subdivision three of this
section, an employer shall not be in violation of this section where the
employer takes action based on the belief either that: (i) the
employer's actions were required by statute, regulation, ordinance or
other governmental mandate, (ii) the employer's actions were permissible
pursuant to an established substance abuse or alcohol program or
workplace policy, professional contract or collective bargaining
agreement, or (iii) the individual's actions were deemed by an employer
or previous employer to be illegal or to constitute habitually poor
performance, incompetency or misconduct.
5. Nothing in this section shall apply to persons who, on an
individual basis, have a professional service contract with an employer
and the unique nature of the services provided is such that the employer
shall be permitted, as part of such professional service contract, to
limit the off-duty activities which may be engaged in by such
individual.
6. Nothing in this section shall prohibit an organization or employer
from offering, imposing or having in effect a health, disability or life
insurance policy that makes distinctions between employees for the type
of coverage or the price of coverage based upon the employees'
recreational activities or use of consumable products, provided that
differential premium rates charged employees reflect a differential cost
to the employer and that employers provide employees with a statement
delineating the differential rates used by the carriers providing
insurance for the employer, and provided further that such distinctions
in type or price of coverage shall not be utilized to expand, limit or
curtail the rights or liabilities of any party with regard to a civil
cause of action.
7. a. Where a violation of this section is alleged to have occurred,
the attorney general may apply in the name of the people of the state of
New York for an order enjoining or restraining the commission or
continuance of the alleged unlawful acts. In any such proceeding, the
court may impose a civil penalty in the amount of three hundred dollars
for the first violation and five hundred dollars for each subsequent
violation. b. In addition to any other penalties or actions otherwise applicableSection: Previous Article 7 200 200-A 201 201-A 201-B 201-C 201-D 201-E 201-F 202 202-A 202-B 202-C 202-D Next
pursuant to this chapter, where a violation of this section is alleged
to have occurred, an aggrieved individual may commence an action for
equitable relief and damages.
Last modified: March 30, 2010
I also ask the reader to look at this on the website of Kauff McGuire & Margolis LLP:
New Law Protects New York Employees From Discrimination Based on Legal Off-Duty Conduct
October 1, 1992Under a new statute, New York employers may not take adverse employment actions against employees or applicants for employment on the basis of their legal, off-duty conduct. The new law, section 201-d of the Labor Law, which takes effect on January 1, 1993, grew out of efforts by the tobacco lobby to prevent employers from discriminating against employees who smoke. The final version of the law, however, goes beyond merely protecting smokers. The statute broadly defines a variety of legal activities that, if engaged in on an employee's own time and without the use of company property or equipment, may not form the basis for adverse employment decisions.
The law creates four areas of "protected" employee activities: (1) political activities, such as campaigning or fund-raising; (2) legal recreational activities, broadly defined to include virtually all non-compensated leisure time activity; (3) the legal use of consumable products, off company property and outside of working time; and (4) membership in a union or the exercise of rights related to union activity. It is unlawful for an employer to "refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against" an employee because of the employee's protected activities. An aggrieved employee may file suit for equitable relief and damages, or the Attorney General may sue for injunctive relief and for a civil fine. The statute does not provide for recovery of attorney's fees by a prevailing plaintiff.
As with many broadly worded anti-discrimination statutes, this new law is subject to several exceptions. Employers should be wary, however, when seeking to take advantage of the exceptions to the law because the courts have not yet had the opportunity to interpret the sometimes ambiguous terms. The major exceptions to the law's scope are: (i) professional journalists, and civil servants who are prohibited by law from engaging in political activity, are excluded from the protection for political activity; (ii) off-duty conduct is not protected where engaging in the activity "creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest" or, as to any public employee, would violate local ethics or conflict of interest regulations; (iii) an employer does not violate the statute if actions are taken in accordance with obligations imposed under a collective bargaining agreement or a personal services contract with a professional employee; and (iv) an employer does not violate the statute if actions are taken against an employee "based on the belief" that the action is "required by statute, regulation, ordinance, or other governmental mandate" or is warranted based on behavior "deemed by an employer to constitute habitually poor performance, incompetency or misconduct."
Of particular concern to employers is the application of the new law to employee anti-smoking rules, drug and alcohol abuse programs, anti-dating and anti-moonlighting rules, and employee benefit plans. First, despite the origins of the statute as a protection for employees who smoke, it is critical to note that the statute only protects activity that occurs off company property and outside of working time. Therefore, a company policy prohibiting smoking either during working hours or on the company's premises is permitted under the new statute. Similarly, compliance with local ordinances concerning smoking in public places may be observed without running afoul of the new law.
The statute also specifically authorizes actions taken by employers under an established substance abuse program or workplace policy, including such provisions in a collective bargaining agreement. Thus, a workplace rule prohibiting the consumption of alcoholic beverages before reporting to work may be exempt from the new law's protection. Of course, any employee's conduct while on working time (such as being under the influence of alcohol) is clearly outside the protection of this new law. Of greater concern are employer-sponsored drug testing programs. Although the use of illegal drugs is not protected by the new law, the use of legal drugs (such as prescription medication) is protected. Consequently, any drug testing program that does not effectively differentiate between an employee's legal and illegal drug use may be in violation of the law.
The new law has no application to an anti-moonlighting rule, because only non-compensated leisure time activities are protected. An employer's policy prohibiting dating between co-workers, however, may be prohibited by the statute, depending on whether the courts interpret dating to be a "recreational" activity (although, even then, an employer could argue that a particular dating relationship creates such a serious conflict of interest that it would fall within one of the exceptions to the law's prohibitions discussed above).
Finally, with respect to employee benefit plans, the law specifically permits an employer to maintain a health or benefit plan "that makes distinctions between employees for the type of coverage or the price of coverage based upon the employees' recreational activities or the use of consumable products." Thus, medical insurance may be charged to a smoker at a higher rate than to a non-smoker, without violating the new law.
For most employers, the impact of this new law on the day-to-day operation of the company will be limited. Unless an employer has an established policy prohibiting dating between co-workers or of not hiring smokers (whether or not they smoke on the job), democrats, or employees who have high-risk hobbies, the new law may be of little practical consequence. Nevertheless, the new law represents a significant limitation on the traditional New York rule of employment-at-will, and employers should be sensitive to the possible ramifications of the new law for employment actions based on employee conduct that occurs off the job.
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