Can NY Employers Legally Terminate a Rally Protester?

September 14, 2017 | Brian M. Culnan | Daniel M. Bernstein

So you employ a white supremacist …

Since August’s tragic events in Charlottesville, various social media feeds have identified protesters from the “Unite the Right” rally held on the University of Virginia campus. Several traditional media outlets have reported that subsequent public shaming of those identified as participants in the rally has caused companies to terminate their employment. Could a private employer in New York do the same without fear of a successful lawsuit from the fired employee?

As preliminary matters, it is important to note that the First Amendment to the United States Constitution, which prohibits the government from interfering with the free exercise of speech, does not protect private-sector employees who make statements or donations in favor of causes with which their employers disagree from being fired. In addition, New York is known as an at-will employment state. This generally means that, unless the private parties’ employment relationship is governed by a written contract limiting the employer’s right to terminate, the employer is free to discharge the employee at any time, for any reason, or for no reason at all. (The employee is equally free to separate from the employer at any time.) If an employee is a member of a “protected class” (based on characteristics such as race, gender, religion, national origin, sexual orientation or disability), then the employer cannot take adverse action against the employee “because of” his or her membership in the protected class. However, persons espousing certain political views are not considered a “protected class” under either the federal Civil Rights Act or the New York Human Rights Law.

Against that backdrop, New York law does prohibit an employer from taking adverse employment action because of “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.” Labor Law § 201-d(2)(a). “Political activities” are defined as “(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.” Labor Law § 201-d(1)(a). The statutory protection does not protect activity which “creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest.” Labor Law § 201-d(3)(a).

Few cases have been decided under the political activity provision of the New York Labor Law. The scant judicial authority that does exist suggests that private sector employees who are able to establish that they engaged in overt political activity, such as obtaining signatures for candidates, volunteering at phone banks, or distributing literature on behalf of a candidate or cause, will be afforded protection under the statute. See, e.g., Fishman v. Cty. of Nassau, 2013 WL 1339466 at *10 (E.D.N.Y. 2013). Conversely, claims will be dismissed where the terminated employee did not engage in “political activities,” as defined above. See Wehlage v. Quinlan, 55 A.D.3d 1344 (4th Dept. 2008).

Because analysis of any potential claim under Labor Law § 201-d is inherently fact-specific, there can be no broad statement regarding what constitutes protected and unprotected speech or conduct. Employers should treat each case on an individual basis with full consideration of the facts, focusing on whether or not the employee has engaged in “political activities” as defined in the statute.

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