§ 201-D — Discrimination against the engagement in certain activities

New York § 201-D

• Jurisdiction: New York
• Law LAB: Labor
• Art. 7: General Provisions

Text

§ 201-d. Discrimination against the engagement in certain activities.\n1. Definitions. As used in this section:\n a. "Political activities" shall mean (i) running for public office,\n(ii) campaigning for a candidate for public office, or (iii)\nparticipating in fund-raising activities for the benefit of a candidate,\npolitical party or political advocacy group;\n b. "Recreational activities" shall mean any lawful, leisure-time\nactivity, for which the employee receives no compensation and which is\ngenerally engaged in for recreational purposes, including but not\nlimited to sports, games, hobbies, exercise, reading and the viewing of\ntelevision, movies and similar material;\n c. "Work hours" shall mean, for purposes of this section, all time,\nincluding paid and unpaid breaks and meal periods, that the employee is\nsuffered, permitted or expected to be engaged in work, and all time the\nemployee is actually engaged in work. This definition shall not be\nreferred to in determining hours worked for which an employee is\nentitled to compensation under any law including article nineteen of\nthis chapter;\n d. "Political matters" shall mean matters relating to elections for\npolitical office, political parties, legislation, regulation and the\ndecision to join or support any political party or political, civic,\ncommunity, fraternal or labor organization;\n e. "Religious matters" shall mean matters relating to religious\naffiliation and practice and the decision to join or support any\nreligious organization or association.\n 2. Unless otherwise provided by law, it shall be unlawful for any\nemployer or employment agency to refuse to hire, employ or license, or\nto discharge from employment or otherwise discriminate against an\nindividual in compensation, promotion or terms, conditions or privileges\nof employment because of:\n a. an individual's political activities outside of working hours, off\nof the employer's premises and without use of the employer's equipment\nor other property, if such activities are legal, provided, however, that\nthis paragraph shall not apply to persons whose employment is defined in\nparagraph six of subdivision (a) of section seventy-nine-h of the civil\nrights law, and provided further that this paragraph shall not apply to\npersons who would otherwise be prohibited from engaging in political\nactivity pursuant to chapter 15 of title 5 and subchapter III of chapter\n73 of title 5 of the USCA;\n b. an individual's legal use of consumable products, including\ncannabis in accordance with state law, prior to the beginning or after\nthe conclusion of the employee's work hours, and off of the employer's\npremises and without use of the employer's equipment or other property;\n c. an individual's legal recreational activities, including cannabis\nin accordance with state law, outside work hours, off of the employer's\npremises and without use of the employer's equipment or other property;\n d. an individual's membership in a union or any exercise of rights\ngranted under Title 29, USCA, Chapter 7 or under article fourteen of the\ncivil service law; or\n e. an individual's refusal to: (i) attend an employer-sponsored\nmeeting with the employer or its agent, representative or designee, the\nprimary purpose of which is to communicate the employer's opinion\nconcerning religious or political matters; or (ii) listen to speech or\nview communications, the primary purpose of which is to communicate the\nemployer's opinion concerning religious or political matters.\n 3. The provisions of subdivision two of this section shall not be\ndeemed to protect activity which:\n a. creates a material conflict of interest related to the employer's\ntrade secrets, proprietary information or other proprietary or business\ninterest;\n b. with respect to employees of a state agency as defined in sections\nseventy-three and seventy-four of the public officers law respectively,\nis in knowing violation of subdivision two, three, four, five, seven,\neight or twelve of section seventy-three or of section seventy-four of\nthe public officers law, or of any executive order, policy, directive,\nor other rule which has been issued by the attorney general regulating\noutside employment or activities that could conflict with employees'\nperformance of their official duties;\n c. with respect to employees of any employer as defined in section\ntwenty-seven-a of this chapter, is in knowing violation of a provision\nof a collective bargaining agreement concerning ethics, conflicts of\ninterest, potential conflicts of interest, or the proper discharge of\nofficial duties;\n d. with respect to employees of any employer as defined in section\ntwenty-seven-a of this chapter who are not subject to section\nseventy-three or seventy-four of the public officers law, is in knowing\nviolation of article eighteen of the general municipal law or any local\nlaw, administrative code provision, charter provision or rule or\ndirective of the mayor or any agency head of a city having a population\nof one million or more, where such law, code provision, charter\nprovision, rule or directive concerns ethics, conflicts of interest,\npotential conflicts of interest, or the proper discharge of official\nduties and otherwise covers such employees; and\n e. with respect to employees other than those of any employer as\ndefined in section twenty-seven-a of this chapter, violates a collective\nbargaining agreement or a certified or licensed professional's\ncontractual obligation to devote his or her entire compensated working\nhours to a single employer, provided however that the provisions of this\nparagraph shall apply only to professionals whose compensation is at\nleast fifty thousand dollars for the year nineteen hundred ninety-two\nand in subsequent years is an equivalent amount adjusted by the same\npercentage as the annual increase or decrease in the consumer price\nindex.\n 4. Notwithstanding the provisions of subdivision three of this\nsection, an employer shall not be in violation of this section where the\nemployer takes action based on the belief either that: (i) the\nemployer's actions were required by statute, regulation, ordinance or\nother governmental mandate, (ii) the employer's actions were permissible\npursuant to an established substance abuse or alcohol program or\nworkplace policy, professional contract or collective bargaining\nagreement, or (iii) the individual's actions were deemed by an employer\nor previous employer to be illegal or to constitute habitually poor\nperformance, incompetency or misconduct.\n 4-a. Notwithstanding the provisions of subdivision three or four of\nthis section, an employer shall not be in violation of this section\nwhere the employer takes action related to the use of cannabis based on\nthe following:\n (i) the employer's actions were required by state or federal statute,\nregulation, ordinance, or other state or federal governmental mandate;\n (ii) the employee is impaired by the use of cannabis, meaning the\nemployee manifests specific articulable symptoms while working that\ndecrease or lessen the employee's performance of the duties or tasks of\nthe employee's job position, or such specific articulable symptoms\ninterfere with an employer's obligation to provide a safe and healthy\nwork place, free from recognized hazards, as required by state and\nfederal occupational safety and health law; or\n (iii) the employer's actions would require such employer to commit any\nact that would cause the employer to be in violation of federal law or\nwould result in the loss of a federal contract or federal funding.\n 5. Nothing in this section shall apply to persons who, on an\nindividual basis, have a professional service contract with an employer\nand the unique nature of the services provided is such that the employer\nshall be permitted, as part of such professional service contract, to\nlimit the off-duty activities which may be engaged in by such\nindividual.\n 6. Nothing in this section shall prohibit an organization or employer\nfrom offering, imposing or having in effect a health, disability or life\ninsurance policy that makes distinctions between employees for the type\nof coverage or the price of coverage based upon the employees'\nrecreational activities or use of consumable products, provided that\ndifferential premium rates charged employees reflect a differential cost\nto the employer and that employers provide employees with a statement\ndelineating the differential rates used by the carriers providing\ninsurance for the employer, and provided further that such distinctions\nin type or price of coverage shall not be utilized to expand, limit or\ncurtail the rights or liabilities of any party with regard to a civil\ncause of action.\n 7. a. Where a violation of this section is alleged to have occurred,\nthe attorney general may apply in the name of the people of the state of\nNew York for an order enjoining or restraining the commission or\ncontinuance of the alleged unlawful acts. In any such proceeding, the\ncourt may impose a civil penalty in the amount of three hundred dollars\nfor the first violation and five hundred dollars for each subsequent\nviolation.\n b. In addition to any other penalties or actions otherwise applicable\npursuant to this chapter, where a violation of this section is alleged\nto have occurred, an aggrieved individual may commence an action for\nequitable relief and damages.\n 8. Nothing in this section shall prohibit: (i) an employer or its\nagent, representative or designee from communicating to its employees\nany information that the employer is required by law to communicate, but\nonly to the extent of such legal requirement; (ii) an employer or its\nagent, representative or designee from communicating to its employees\nany information that is necessary for such employees to perform their\njob duties; (iii) an institution of higher education, or any agent,\nrepresentative or designee of such institution, from meeting with or\nparticipating in any communications with its employees that are part of\ncoursework, any symposia or an academic program at such institution;\n(iv) casual conversations between employees or between an employee and\nan agent, representative or designee of an employer, provided\nparticipation in such conversations is not required; or (v) a\nrequirement limited to the employer's managerial and supervisory\nemployees.\n 9. The provisions of this section shall not apply to a religious\ncorporation, entity, association, educational institution or society\nthat is exempt from the requirements of Title VII of the Civil Rights\nAct of 1964 pursuant to 42 USC 2000e-1(a) with respect to speech on\nreligious matters to employees who perform work connected with the\nactivities undertaken by such religious corporation, entity,\nassociation, educational institution or society.\n 10. Every employer shall post a sign in every workplace at the\nlocation or locations where notices to employees are normally posted, to\ninform employees of their rights pursuant to this section.\n