With certain exceptions, a company in New York State may
neither fire nor refuse or hire an individual because of his or her lawful,
off-duty, political or recreational activities.
More specifically, in New York State, employers may not
refuse to hire, discharge from employment, or otherwise discriminate against an
individual with respect to the terms and conditions of his or her employment
because he or she (i) is engaged in lawful political activities outside of
working hours, off of the employer's premises and without use of the employer's
equipment or other property, (ii) uses lawful consumable products before 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, (iii) engages in lawful recreational activities outside work hours,
off of the employer's premises and without use of the employer's equipment or
other property (including but not limited to sports, games, hobbies, exercise,
reading and the viewing of television, monies and similar material), or (iv) is
a member of a union. N.Y. Labor Law § 201-d(1)(b), 201-d(2)(a),
201-d(2)(b), 201-d(2)(c), 201d(2)(d).
Such lawful, off-the-job, political or recreational
activity by an individual is not protected if it creates a material conflict of
interest related to the employer's trade secrets, proprietary information or
other proprietary or business interest. N.Y. Labor Law § 201-d(3)(a).
Further, an employer who enters into a professional
services contract with an individual for the provision of services of a "unique
nature" may, as part of that professional services contract, limit the off-duty
activities in which the individual may engage. N.Y. Labor Law §
201-d(5). So, for example, a professional baseball team's contract with a
professional baseball player might lawfully provide that the player may not
play recreational basketball.
Thus, in 2004, after New York Yankees third baseman Aaron Boone
injured his left knee while playing recreational basketball in violation of his
one-year, $5.75 million contract, the Yankees terminated Boone's contract and
released him. Upon releasing Boone, the Yankees paid him only thirty days of
severance pay, or about $942,200.
In addition, it is not a violation of section 201-d of
the New York Labor Law if the employer takes action based on the belief that
its actions were permissible pursuant to an established substance abuse or
alcohol program or workplace policy. See N.Y. Labor Law §
201-d(4).
New York's Appellate Division repeatedly has held "that
romantic relationships are not protected 'recreational activities' within the
meaning of" N.Y. Labor Law § 201-d(2)(c). Hudson v. Goldman Sachs
& Co., 283 A.D.2d 246, 246, 725 N.Y.S.2d 318 (1st Dep't 2001).
Accordingly, New York's First, Second, and Third Departments each have held
that an employer does not violate N.Y. Labor Law § 201-d(2)(c) by firing a
worker for engaging in an extramarital affair with a co-worker. See
Bilquin v. Roman Catholic Church, 286 A.D.2d 409, 729 N.Y.S.2d 519 (2d
Dep't 2001); Hudson, 283 A.D.2d at 246; State of New York v. Wal-Mart
Stores, Inc., 207 A.D.2d 150, 151-152 (3rd Dep't 1995).
Where an employer fires or refuses to hire an individual
because of his or her lawful, off-the-job, political or recreational
activities, the individual may, in a lawsuit, recover damages and obtain
equitable relief against the employer. N.Y. Labor Law § 201-d(7)(b).
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If
your company needs assistance or guidance on a labor or employment law issue
and your company is located in the New York City area, call Attorney David S.
Rich at (212) 209-3972.