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Law360 (July 13, 2020, 4:41 PM EDT) --
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| Alexandra Berke |
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| Kacie Candela |
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| Margaret Lee |
Many of the protesters are employees, either actively employed or temporarily furloughed from work. This piece covers the extent to which employees in New York are allowed to protest, in person or online, without fear of discipline at work.
We also analyze to what extent employers are allowed to view employees who have participated in protests as a risk to newly reopened workplaces. Similarly, employees may want to know whether their increased risk of exposure could affect their job security, and what their rights are in this situation.
Does New York's so-called outside activities statute protect employees' rights to protest outside of work?
The First Amendment's rights to freedom of speech and assembly are not available to employees in a private workplace. Meanwhile, 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 off-duty conduct, as specified in New York Labor Law Section 201-d.[2] 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: (1) running for public office, (2) campaigning for a candidate for public office, or (3) participating in fundraising 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.
But New York courts have varied in their interpretation of the term "recreational activities"[3] 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.[4] 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 employees be fired for what they post on social media? What should they know about the employee handbook?
Employees can be disciplined for using company property for nonwork 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 Section 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 President Donald Trump to Pearl Harbor and 9/11 sued his employer, the New York Post.[5] 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 the employee complains about their workplace?
The National Labor Relations Act 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.[6] The National Labor Relations Board, the public agency that administers the NLRA, has upheld employees' right to complain about their workplace without being terminated.
Are employers required to grant time off for employees 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 an 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.
Can employers require that employees take a COVID-19 test after protesting but before returning to in-person work?
Sort of. According to the latest U.S. Equal Employment Opportunity Commission guidance, employers can administer COVID-19 tests before allowing employees to enter the workplace.[7] Some employers will require this testing of everyone before reopening the workplace.
However, employers cannot single out an employee they know or suspect attended a protest and require that person to get tested, unless that person has shown symptoms of COVID-19. Under the Americans with Disabilities Act, during this pandemic employers are permitted to ask employees if they are experiencing COVID-19 symptoms, such as fever, chills, cough, shortness of breath, sore throat or other emerging symptoms based on changing federal guidance.[8]
If an employee has symptoms of COVID-19, the employer is within its rights to require the employee to stay home and to forbid them from returning to the workplace until they can produce a doctor's note certifying that they do not or no longer have COVID-19. This is called fitness-for-duty documentation, and is ideally a negative COVID-19 test result.
Can employers require employees to stay home even if COVID-19 tests come back negative and the employee has no symptoms, merely because they were protesting?
No. Even if an employer feels that its employees who protest are at a higher risk for developing or causing infection, under current EEOC guidance an employer cannot force such workers who test negative and are otherwise asymptomatic to stay home.
The only way an employer can keep a virus-free high-risk employee home is if the employer can establish after an individualized assessment that the risk of substantial harm — a very high bar — cannot be reduced or eliminated by a reasonable accommodation, such as teleworking, or giving the employee a staggered shift or a workspace in a room separate from other employees.
Employers who treat employees who protest differently than nonprotesting employees risk discriminating against them under New York Labor Law Section 201-d.[9]
What leave options are available to employees while they await COVID-19 test results? What if they test positive?
Under the Families First Coronavirus Response Act, many employees can take up to 10 days of paid leave if they are experiencing symptoms of COVID-19 and are seeking a medical diagnosis; if they have been advised to self-quarantine by a health care provider; or if they have received a self-quarantine order from the state or local government. In New York, this is not based on the statewide plan for reopening, but specific to the individual, usually after a positive COVID-19 test result.[10]
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.
Alexandra Berke is an associate, Kacie Candela is a law clerk and Margaret Lee is a paralegal at Berke-Weiss Law PLLC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] See Maya King & Renuka Rayasam, America's monumental summer, POLITICO Nightly: Coronavirus Special Edition, Politico (July 2, 2020, 7:23 PM), https://www.politico.com/newsletters/politico-nightly-coronavirus-special-edition.
[2] See N.Y. Lab. Law § 201-d (1992), https://www.nysenate.gov/legislation/laws/LAB/201-D.
[3] See generally, Anne Carey, Political Ideology as a Limited Protected Class Under Federal Title VII Antidiscrimination Law, 26 J. L. & Pol'y 637 (2018), https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1567&context=jlp.
[4] See Christine Hauser, Cyclist Lost Her Job After Raising Middle Finger at Trump's Motorcade, N.Y. Times (Nov. 6, 2017), https://www.nytimes.com/2017/11/06/us/middle-finger-trump.html.
[5] See Des Bieler, A sports writer was fired after comparing Trump's inauguration to 9/11. Now he's suing., Wash. Post (Feb. 8, 2017, 10:42 PM), https://www.washingtonpost.com/news/early-lead/wp/2017/02/08/fired-after-anti-trump-tweet-sports-writer-sues-new-york-post/.
[6] See Nat'l Lab. Relations Board, About NLRB, Employee Rights, https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/employee-rights (last visited July 6, 2020).
[7] See U.S. Equal Emp. Opportunity Comm'n, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (2020), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
[8] See Ctrs. for Disease Control and Prevention, Symptoms of Coronavirus (2020), https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html.
[9] See N.Y. Lab. Law § 201-d (1992), https://www.nysenate.gov/legislation/laws/LAB/201-D.
[10] See Understanding Employee's Right to Leave, Berke-Weiss Law, https://www.berkeweisslaw.com/coronavirus-leave (last visited July 6, 2020).
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