Arguing Politics Creates Risk For Employers
America has just concluded a hotly contested and sometimes nasty Presidential election. Partisan feelings ran high on both sides. There is a temptation for the victors to gloat and the losers to lash out. While such emotions may or may not be the sign of a healthy democracy, there are risks to allowing political passions to intrude into the workplace, particularly in New York. Section 201-d (2)(a) of New York’s Labor Law makes it unlawful for an employer to refuse to hire, to fire or to discriminate against an employee because of his or her “political activities.” Political activities are defined as “(1) 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.” N.Y Labor Law 201-d (1)(a). To be protected, the political activities have to be “outside of working hours, off the employer’s premises and without use of the employer’s equipment or property.” Journalists and public employees are excluded from the statutory protection of Section 201-(d) (2)(a). (The political activities of public employee are governed by federal law.)
Some courts have interpreted the definition of political activity fairly narrowly, holding that if an employee did not actively campaign or fundraise for a political candidate, Section 201-d(2)(a) did not apply. Wehlage v. Quinlan, 55 A.D.3d 1344 (4th Dep’t 2008). However, other courts have relied on another provision of the statute — Section 201-d (2)(c), which prohibits discrimination based on an individual’s “legal recreational activities”– to uphold a claim of discrimination based on a political argument held outside work hours. Cavenaugh v. Doherty, 243 A.D.2d 92 (3rd Dep’t 1998). The lesson is that while political activism and debate are hallmarks of our system, employers have to be careful about inquiring into an employee’s outside political activities and cannot let those activities affect the terms and conditions of his or her employment.
This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. We would be pleased to consider providing additional details or advice about specific situations. For additional information on this topic, please feel free to call the author, Alice Jump, who regularly counsels clients on labor and employment matters, or any RPL attorney.
This article may contain attorney advertising.