People continue to fill the streets and social media feeds to denounce racial injustice and police brutality in response to the killings of George Floyd, Breonna Taylor, and Ahmaud Arbery, and the injustice they represent. Many of these protesters are employed by or furloughed from work. While the First Amendment generally allows for peaceful protest, employees must understand that the First Amendment rights of freedom of speech and assembly are not available to employees in a private workplace. However, some states, including New York, have statutes prohibiting employers’ discipline of employees for their off-duty conduct — with some caveats.
Does the New York “Outside Activities” Statute Protect My Rights to Protest Outside of Work?
The principle of “employment at will” allows either the employee or employer to terminate the employment relationship at any time, for any reason or no reason at all, unless the termination is discriminatory or in retaliation. However, New York employees have some protection from being terminated or otherwise disciplined by their employer for outside activities, as specified in New York Labor Law §201-d. This statute prohibits employers from discriminating against an individual because of their political activities or legal recreational activities outside of working hours, so long as they take place off the employer's premises and without use of the employer's equipment or other property.
Under the statute, protected “political activities” are limited to: (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. Protests are not specifically included in this narrow definition. However, “recreational activities” are more broadly defined as “any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes.” This broader definition may cover lawful activities like peaceful protests, and arguably provides some basis for making the claim that protests are protected activities under the statute. However, New York courts have varied in their interpretation of “recreational activities” and even though the statute may provide some coverage for political activities, there is no explicit guarantee that it provides a safe harbor for employees who participate in a protest .
In contrast, outside of New York, there is little statutory protection of an employee’s right to participate in a protest while off-duty. Under federal law, employees may be fired for their actions outside of work, as illustrated by the case of a cyclist who was forced to resign for pointing the middle finger at the president’s motorcade in 2017. Her employer, Akima LLC, a federal contractor, took the position that her behavior violated the company’s code of conduct and she was effectively terminated.
Can I be fired for what I post on social media? What should I know about the employee handbook?
Employees can be disciplined for using company property for non-work matters based on the employer’s policies and procedures. Notably, employees cannot have a reasonable expectation of privacy when using company laptops or emails, even if they do so outside of work hours.
New York Labor Law §201-d also applies to social media posts and may offer some protection to employees. An employer generally cannot discipline employees for social media posts made outside of working hours, off the employer's premises and without use of the employer's equipment or other property. For example, in 2017, an individual fired for comparing the inauguration of Donald Trump to Pearl Harbor and 9/11 sued his employer, the New York Post. He alleged that his off-duty activity rights were violated when he was fired. While the employee later dropped the suit, this example suggests that New York employers should be cautious in trying to limit employee free speech outside of work.
On the other hand, employees are not protected by the statute if they create social media posts that pose a material conflict of interest with the company’s business interests, such as a post revealing trade secrets or proprietary information. New York law also does not prohibit employers from disciplining employees who participate in unlawful conduct or violate a collective bargaining agreement. Moreover, employees should be mindful of the policies in their employee handbook or code of conduct, as these documents often provide guidelines for behavior which could subject the employee to discipline, up to and including termination.
Employer social media policies are commonly included in the employee handbook. If company policy prohibits employees from divulging sensitive information such as salary records, it is intended to apply outside the company, including on online platforms. But, if an employee believes they were wrongfully disciplined for their social media activity, they may have recourse. Some examples of protected social media activity include whistleblowing or complaining about working conditions. However, employees may face disciplinary action when violating company policy by, for example, making discriminatory remarks. In that case, the employer may have the right to discipline the employee even if such comments were made outside of the workplace.
What if I complain about my workplace?
The National Labor Relations Act (“NLRA”) allows employees to discuss the terms and conditions of employment at or outside of work, with fellow employees or third parties. Under the NLRA, the employer generally cannot retaliate against you for criticizing working conditions, such as pay or workplace safety, on social media. The NLRA protects most private employees’ right to discuss working conditions whether or not they are a union member. The National Labor Relations Board, the public agency which administers the NLRA, has upheld employees’ right to complain about their workplace without being terminated.
Can I request time off to protest?
Employers are not mandated by state or federal law to grant leave for employees to protest. However, some employers have decided to allow employees to take time off to protest against racial injustice at this time. If your employer has not offered specific time off for protest activities, the request for time off should be in accordance with your vacation or personal time.
Conclusion
Employees may find themselves retaliated against because of their protesting outside of the workplace, in person or online. But, as the protests continue, and the depth of feeling about their purpose grows, there will be increasing interest in using all available legal tools to allow employees to express their political views off-site while remaining employed.
Written by Paralegal Margaret Lee.
