This week it was reported that a Congressman sent a letter to a business and added a little “P.S.” at the bottom – with an attached news article – to alert the employer that one of its employees was involved in progressive activism. The employee wasn't fired but she stated that the letter and the resulting tensions it caused at work – apparently she was required to write a letter explaining herself to the company's CEO – precipitated her resignation. You can read more about what happened here. Regardless of political affiliation, the idea that an elected official could write a letter to your employer and cause trouble for you, interfering with your ability to earn a living, is troubling even if done in a way that is not technically illegal or unethical (the ethics part of this particular situation being an open question as it is being reported that an ethics complaint has been filed against the Congressman).
This also got us thinking about the potential consequences for the employee. Could she have been fired if her employer didn't like or agree with her political activity? The answer, as in almost all employment law scenarios, is, it depends. Generally speaking, there is no federal protection for political related speech in the private workplace. If you are a public employee, then you have some First Amendment protection. But it's possible that there is protection even for private employees on a state by state basis.
In New York, the Labor Law protects certain “political activities” from discrimination in the workplace. Specifically, New York Labor Law § 201-d provides: “it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of: a. 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.”
An individual's “political activities” are narrowly defined by 201-d to include: “(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.” Notably, what is not included: your generalized political beliefs.
Subsection (3) of the statute also includes several exemptions where an employee would not be protected such as where the activity “creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest.” Other than arguing that the employee's actions were not “political activities” defined by the statue, or that the employee was fired for some wholly unrelated-to-political-activity reason, this conflict of interest provision seems likely to be raised by an employer in these situations.
If an employer violates Section 201-d, the state Attorney General may ask the court to issue an injunction requiring the employer to stop what it's doing and to impose penalties ($200 for the first violation and $500 for each subsequent violation). An “aggrieved individual”, i.e., a person who has been harmed by the employer's unlawful actions and typically the employee himself, may also sue for “equitable relief” and damages. “Equitable relief” means requiring the employer to actually do something – like giving the employee his or her job back – as opposed to merely paying the employee money (i.e., “damages”).
If you feel you have been fired or otherwise treated adversely because of your off-the-job political activities, give us a call. We are happy to see if we can help.