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Being Fired for Things an Employee Did On Their Own Time, Outside of Work: Legal or Not?

New York is an "at will" employment state, meaning that, in the absence of a contract, you can be fired at any time, for any reason, or for no reason at all, unless the reason is based on something like age, race, religion, disability, etc. (just a handful of categories). (Government employees have more protections than private-sector employees, such as First Amendment protections.)

One of the few exceptions to the at-will employment rule is New York Labor Law §201-d. The statute is lengthy and has lots of caveats and qualifiers and defenses (for the employer). But the gist of § 201-d is that an employee can't be disciplined or fired (or not hired) for something they do on their own time, away from work, that is legal, and that is not against the employer's interests. 

The statute and the reported cases mostly deal with "recreational" and "political" activities, and the cases can turn on whether something was a "recreational activity" within the meaning of Labor Law § 201-d. For instance, in 1995, an appeals court held that two employees romantically dating was not a "recreational activity" within the meaning of the statute, so Wal-Mart's firing them for dating did not violate the statute. 

The court explained:
To us, "dating" is entirely distinct from and, in fact, bears little resemblance to "recreational activity". Whether characterized as a relationship or an activity, an indispensable element of "dating", in fact its raison d'être, is romance, either pursued or realized. For that reason, although a dating couple may go bowling and under the circumstances call that activity a "date", when two individuals lacking amorous interest in one another go bowling or engage in any other kind of "legal recreational activity", they are not "dating".
In this age of Facebook and Twitter and other social media, where people tend to say things they probably shouldn't, and employers get wind of it, and the people get fired, look for Labor Law § 201-d to be making more and more appearances in lawsuits by fired plaintiffs. 


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