N.Y. Labor Law § 201-d: Discrimination against the engagement in certain activities

§ 201-d. Discrimination against the engagement in certain activities.

1. Definitions. As used in this section:

a. "Political activities" shall mean (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;

b. "Recreational activities" shall mean any lawful, leisure-time

activity, for which the employee receives no compensation and which is

generally engaged in for recreational purposes, including but not

limited to sports, games, hobbies, exercise, reading and the viewing of

television, movies and similar material;

c. "Work hours" shall mean, for purposes of this section, all time,

including paid and unpaid breaks and meal periods, that the employee is

suffered, permitted or expected to be engaged in work, and all time the

employee is actually engaged in work. This definition shall not be

referred to in determining hours worked for which an employee is

entitled to compensation under any law including article nineteen of

this chapter;

d. "Political matters" shall mean 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;

e. "Religious matters" shall mean matters relating to religious

affiliation and practice and the decision to join or support any

religious organization or association.

2. Unless otherwise provided by law, 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, provided, however, that

this paragraph shall not apply to persons whose employment is defined in

paragraph six of subdivision (a) of section seventy-nine-h of the civil

rights law, and provided further that this paragraph shall not apply to

persons who would otherwise be prohibited from engaging in political

activity pursuant to chapter 15 of title 5 and subchapter III of chapter

73 of title 5 of the USCA;

b. an individual's legal use of consumable products, including

cannabis in accordance with state law, prior to the beginning or after

the conclusion of the employee's work hours, and off of the employer's

premises and without use of the employer's equipment or other property;

c. an individual's legal recreational activities, including cannabis

in accordance with state law, outside work hours, off of the employer's

premises and without use of the employer's equipment or other property;

d. an individual's membership in a union or any exercise of rights

granted under Title 29, USCA, Chapter 7 or under article fourteen of the

civil service law; or

e. an individual's refusal to: (i) attend an employer-sponsored

meeting with the employer or its agent, representative or designee, the

primary purpose of which is to communicate the employer's opinion

concerning religious or political matters; or (ii) listen to speech or

view communications, the primary purpose of which is to communicate the

employer's opinion concerning religious or political matters.

3. The provisions of subdivision two of this section shall not be

deemed to protect activity which:

a. creates a material conflict of interest related to the employer's

trade secrets, proprietary information or other proprietary or business

interest;

b. with respect to employees of a state agency as defined in sections

seventy-three and seventy-four of the public officers law respectively,

is in knowing violation of subdivision two, three, four, five, seven,

eight or twelve of section seventy-three or of section seventy-four of

the public officers law, or of any executive order, policy, directive,

or other rule which has been issued by the attorney general regulating

outside employment or activities that could conflict with employees'

performance of their official duties;

c. with respect to employees of any employer as defined in section

twenty-seven-a of this chapter, is in knowing violation of a provision

of a collective bargaining agreement concerning ethics, conflicts of

interest, potential conflicts of interest, or the proper discharge of

official duties;

d. with respect to employees of any employer as defined in section

twenty-seven-a of this chapter who are not subject to section

seventy-three or seventy-four of the public officers law, is in knowing

violation of article eighteen of the general municipal law or any local

law, administrative code provision, charter provision or rule or

directive of the mayor or any agency head of a city having a population

of one million or more, where such law, code provision, charter

provision, rule or directive concerns ethics, conflicts of interest,

potential conflicts of interest, or the proper discharge of official

duties and otherwise covers such employees; and

e. with respect to employees other than those of any employer as

defined in section twenty-seven-a of this chapter, violates a collective

bargaining agreement or a certified or licensed professional's

contractual obligation to devote his or her entire compensated working

hours to a single employer, provided however that the provisions of this

paragraph shall apply only to professionals whose compensation is at

least fifty thousand dollars for the year nineteen hundred ninety-two

and in subsequent years is an equivalent amount adjusted by the same

percentage as the annual increase or decrease in the consumer price

index.

4. Notwithstanding the provisions of subdivision three of this

section, an employer shall not be in violation of this section where the

employer takes action based on the belief either that: (i) the

employer's actions were required by statute, regulation, ordinance or

other governmental mandate, (ii) the employer's actions were permissible

pursuant to an established substance abuse or alcohol program or

workplace policy, professional contract or collective bargaining

agreement, or (iii) the individual's actions were deemed by an employer

or previous employer to be illegal or to constitute habitually poor

performance, incompetency or misconduct.

4-a. Notwithstanding the provisions of subdivision three or four of

this section, an employer shall not be in violation of this section

where the employer takes action related to the use of cannabis based on

the following:

(i) the employer's actions were required by state or federal statute,

regulation, ordinance, or other state or federal governmental mandate;

(ii) the employee is impaired by the use of cannabis, meaning the

employee manifests specific articulable symptoms while working that

decrease or lessen the employee's performance of the duties or tasks of

the employee's job position, or such specific articulable symptoms

interfere with an employer's obligation to provide a safe and healthy

work place, free from recognized hazards, as required by state and

federal occupational safety and health law; or

(iii) the employer's actions would require such employer to commit any

act that would cause the employer to be in violation of federal law or

would result in the loss of a federal contract or federal funding.

5. Nothing in this section shall apply to persons who, on an

individual basis, have a professional service contract with an employer

and the unique nature of the services provided is such that the employer

shall be permitted, as part of such professional service contract, to

limit the off-duty activities which may be engaged in by such

individual.

6. Nothing in this section shall prohibit an organization or employer

from offering, imposing or having in effect a health, disability or life

insurance policy that makes distinctions between employees for the type

of coverage or the price of coverage based upon the employees'

recreational activities or use of consumable products, provided that

differential premium rates charged employees reflect a differential cost

to the employer and that employers provide employees with a statement

delineating the differential rates used by the carriers providing

insurance for the employer, and provided further that such distinctions

in type or price of coverage shall not be utilized to expand, limit or

curtail the rights or liabilities of any party with regard to a civil

cause of action.

7. a. Where a violation of this section is alleged to have occurred,

the attorney general may apply in the name of the people of the state of

New York for an order enjoining or restraining the commission or

continuance of the alleged unlawful acts. In any such proceeding, the

court may impose a civil penalty in the amount of three hundred dollars

for the first violation and five hundred dollars for each subsequent

violation.

b. In addition to any other penalties or actions otherwise applicable

pursuant to this chapter, where a violation of this section is alleged

to have occurred, an aggrieved individual may commence an action for

equitable relief and damages.

8. Nothing in this section shall prohibit: (i) an employer or its

agent, representative or designee from communicating to its employees

any information that the employer is required by law to communicate, but

only to the extent of such legal requirement; (ii) an employer or its

agent, representative or designee from communicating to its employees

any information that is necessary for such employees to perform their

job duties; (iii) an institution of higher education, or any agent,

representative or designee of such institution, from meeting with or

participating in any communications with its employees that are part of

coursework, any symposia or an academic program at such institution;

(iv) casual conversations between employees or between an employee and

an agent, representative or designee of an employer, provided

participation in such conversations is not required; or (v) a

requirement limited to the employer's managerial and supervisory

employees.

9. The provisions of this section shall not apply to a religious

corporation, entity, association, educational institution or society

that is exempt from the requirements of Title VII of the Civil Rights

Act of 1964 pursuant to 42 USC 2000e-1(a) with respect to speech on

religious matters to employees who perform work connected with the

activities undertaken by such religious corporation, entity,

association, educational institution or society.

10. Every employer shall post a sign in every workplace at the

location or locations where notices to employees are normally posted, to

inform employees of their rights pursuant to this section.