Labor and Employment Law

Can My Company In New York Fire An Employee Because Of His Off-The-Job Activities?

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.