Q3: 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". The employee is a
lawyer and the employer is a NY law firm that regularly represents victims of
discrimination. Is the termination wrongful?
A3: NY Labor Code Section 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. Section 201-d does not
protect activity that creates a material conflict of interest related to the
employer’s business interests. The law firm could make a strong argument that
it should be able to prohibit a lawyer that it employs from participating in a
white supremacist rally in order to protect the law firm’s business interest in
marketing itself as an advocate for victims of discrimination.
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