Understanding New York’s Legal Activities Law and Its Protections for Off-Duty Political and Religious Speech

Quick Hits

• New York law protects employees from discrimination based on protected off-duty engagement in political or religious matters.
• Employers in New York may want to consider the protections provided to employees under the law before taking adverse action against employees for off-duty speech, as they may be protected for certain political or religious speech, excluding speech that incites violence or constitutes hate speech.

The New York Legal Activities Law, New York Labor Law Section 201-D, prohibits employers from taking adverse employment action against employees, including disciplining or discharging them, for their engagement in certain off-duty conduct or activities. The law expressly protects “political matters” and “religious matters,” both of which are broadly defined.

• “Political matters” are defined as “matters relating to elections for political office, political parties, legislation, regulation and the decision to join or support any political party or political, civic, community, fraternal or labor organization.”
• “Religious matters” are defined as “matters relating to religious affiliation and practice and the decision to join or support any religious organization or association.”

With the increase in political polarization and the ease with which employees can post on social media, instances of employees being discharged for their off-duty conduct or speech are on the rise. New York employers will likely be well served to tread carefully and be mindful of the New York Legal Activities Law before taking adverse employment action against an employee for off-duty political or religious speech.

Ogletree Deakins’ New York offices will continue to monitor developments and will provide updates on the Employee Engagement, Employment Law, and New York blogs as additional information becomes available.

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