Q2: A private employer in NY fires an employee after seeing videos on Facebook of the employee branding a tiki torch and wearing a KKK t-shirt at the Charlottesville, VA rally. The employee did not have an employment contract and was employed “at-will”. Was he wrongfully terminated?
A2: Employment “at-will” means that an employer can terminate an employee for any (or no) reason, at any time – but, there are exceptions. The better known exceptions do not apply here. The employee’s termination was not a response to whistleblower activity. Nor was the termination based upon race, religion, gender or another protected class. Like most states, and the federal government in Title VII of the Civil Rights Act of 1964, NY does not include “political views” or “political activities” in its list of categories protected by discrimination laws. There is, however, one exception to “at-will” employment that might make this termination wrongful. N.Y. Labor Code § 201-d prohibits an employer from firing an employee because of his/her legal recreational activities outside of work hours, off of the employer's premises, and without use of the employer's equipment or other property. Marching in a protest is a legal activity, even if the cause is reprehensible. If the employer had come to me before firing the employee, I would have advised the employer to proceed with great caution. A court could very well find that firing the employee for taking part in the rally a violation of §201-d. That being said, if the photos showed that the employee was engaged in violent activity, the employer would have a stronger case for termination. Violence is not legal and is not a protected activity.
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