Election Day is November 8. Some of us keep our politics private, while others feel more comfortable participating in public discourse. But what happens if your boss disagrees? Do you have any protection? We also talk about your right to take time off to vote in New York.
We see lots of examples in the news of people being fired for expressing a political belief their employer may not like. One example that went viral at the time was a woman, riding her bike, who gave then-President Trump's motorcade the middle finger and was then fired. You can read our article about that here, which also includes links to other articles we've written about protest marches, taking a knee, and other speech that may impact you at work.
Is there any protection for this type of 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 that can be limited in the workplace. 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. The Second Circuit (the federal appeals court that covers New York) recently reinstated an employee's lawsuit under Section 201-d finding that an employer giving an employee an “impermissible choice” between running for office and his or her employment could violate the statute. Notably, the Court recognized that actually serving in an elected position is not listed in the statute, but running for one is. Truitt v. Salisbury Bank and Trust Company, --- F.4th ---- (2d Cir. October 27, 2022)
But the statute is not absolute and subsection (3) includes several exceptions 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”).
Even if an individual's political activity is not protected, most employees still enjoy protection from sex and race discrimination, among other things. So, if rules against political activity aren't applied uniformly, then there may be recourse.
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.
New Yorkers have the right to take necessary (paid) time off from work to vote if they do not have sufficient time outside of working hours. Ten working days prior to any election, employers must post a notice informing employees of their right to take this time off. An employee must give notice of their intention to take such time at least two working days prior to election day.
If you believe you are entitled to this time off, you should check your employer's notice or the Board of Elections website because things like whether you have “sufficient time” outside of work to vote are defined by the law, and may not apply to everyone.