Please note that the information contained in this blog is for informational purposes and is not to be considered legal advice. This blog does not create or imply an attorney-client relationship. Satter Ruhlen Law Firm makes no representation that the information herein reflects the most current state of the law. This blog is not a substitute for consultation with an attorney licensed in your jurisdiction. If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.
Hello, fellow Upstaters! You probably know by now that New York State private sector minimum wages are going up on December 31, 2021. This is pursuant to amendments to New York State minimum wage orders, which since 2016 have set a goal that the rate, eventually, will reach $15.00/hour for private sector workers statewide. As of December 31, 2021, minimum wage for private sector, non-hospitality or building trade employees in Upstate New York will increase to $13.20/hour.
But be careful before you take this opportunity to go on a shopping spree. First, you might not be in a sector governed by the minimum wage orders (sorry, public employees). Second, if you’re in New York City, the rules are different for you. Third, hello food service workers! You have to deal with stuff like tip credits, tip pooling, and other complications (hint: your wages are still far below everyone else’s because, allegedly, tips are supposed to make up the rest.)
Luckily, the New York State Department of Labor has created a wage calculator that will help you figure out whether, and how much, you benefit from this new increase. (Go try it out, it’s fun!) Additionally, there’s a handy flyer that can give you some background information on where the strive for $15 has taken us so far.
As always, if you have questions about your wages, contact a workers’ rights attorney today!
Most New York Employers Can No Longer Drug Test Employees For Cannabis
On July 1, 2021, I blogged about the intersection of legalization of recreational cannabis use and an employee’s workplace rights in New York. At that time, the New York State Department of Labor [“NYS DOL”] had not yet weighed in on whether employers may continue to test employees for cannabis now that recreational use is legal in New York or addressed other issues created by cannabis legalization. On October 8, 2021, however, NYS DOL released guidance clarifying workplace rights in the post legalization era. Adult Use Cannabis And The Workplace – New York Labor Law 201-D (October 8, 2021).
Review of NYS DOL guidance tells us the following:
- Drug testing for cannabis is now permitted only when federal, or state, law requires drug testing or makes it a mandatory requirement of the position. For example, when federal or state law mandates drug testing for drivers of commercial vehicles or other safety sensitive positions, cannabis drug screening, be it pre-employment, randomized, or in response to an accident or injury, is permissible.
- To impose discipline against an employee suspected of being under the influence of cannabis at work, an employer must show that the employee manifests “specific articulable symptoms of impairment” that decrease the performance of their duties or interfere with an employer’s obligation to provide a safe workplace as required by state and federal occupational safety and health laws.
So, what exactly are “articulable symptoms of impairment?” The guidance does not provide a list of specific symptoms but explains that the symptoms must be “objectively observable indications that the employee’s performance of the duties of the position are decreased or lessened.” This appears to mean that neither a positive drug test for cannabis nor the smell of cannabis on one’s clothing can serve as the sole basis for an employer’s conclusion that an employee was impaired by marijuana at work and therefore subject to discipline.
Keep in mind that cannabis legalization does not prevent an employer from prohibiting cannabis use during “work hours,” which includes unpaid breaks and mealtimes, even if the employee leaves the worksite. Employers can also prohibit the use of cannabis during periods when an employee is “on call.” In addition, employers can also prohibit cannabis possession while at work and prohibit cannabis use, and possession, in company vehicles or on company property, even after regular business hours or shifts. When a remote employee works from the confines of a private residence, however, an employer cannot prohibit possession of cannabis at the remote location because the term “worksite” does not include a remote employee’s private residence. N.Y. Lab L. §201-D. As such, an employer can only impose discipline of a remote employee if s/he exhibited articulable symptoms of impairment during work hours, not for possession of cannabis.
If you believe you have been improperly disciplined by your employer for legal use of cannabis, contact a workers’ rights attorney.
Need To Take Time Off From Work To Vote on November 2, 2021?
On Tuesday, November 2, 2021, polls in New York will be open from 6:00 am to 9:00 pm.
Employees in New York are eligible for up to two hours of paid time off to vote in certain circumstances.
Specifically, if you don’t have “sufficient time to vote” during your workday, NYS Election law gives you up to two hours paid time off to vote. Election Law §3-110. By contrast, you are deemed to have “sufficient time to vote” if you have four consecutive hours to vote either from the opening of the polls to the beginning of your shift, or four consecutive hours between the end of your shift and the closing of the polls. Id.
Here’s an example. If you must work from 9:00 am to 5:00 pm on Tuesday, November 2, 2021, the election law deems you as having “sufficient time to vote” and therefore not eligible to paid voting leave. This is because the polls are open until 9:00 pm – which is four consecutive hours after the end of your shift at 5:00 pm. If, however, you work from 9:00 am to 6:00 pm on Tuesday, November 2, 2021, you can get paid voting leave because the polls are open for only three consecutive hours after the end of your shift. The total amount of paid time off you are entitled to depends on several factors, including travel time from your workplace to your polling place, waiting time at your polling place, traffic, among other things. The maximum paid time off to vote is capped at two hours.
Please note the following:
- You are required to give your employer at least two working days prior notice of your intention to take paid time off to vote, but not more than ten working days’ notice. The term “working days” is defined as any day that your employer is open for business.
- Your employer cannot require you to use personal time off or any other form of earned leave time to vote.
- Regardless of your vaccination status, masks are required for all individuals entering polling locations.
If, you believe your employer is impermissibly denying you paid time off for voting, contact a workers’ rights attorney or the New York State Department of Labor.
This article is an update of our January 27, 2021 blog post.
As more and more employers implement mandatory vaccination policies for employees, it’s important for employees to understand why the requirement is legal, and what their options are.
Legal challenges to vaccine mandates have not, so far, been successful. Applications for injunctive relief have been denied, and a federal court in Texas has rejected wrongful termination and public policy arguments. New York City Municipal Labor Committee, et al. v. City of New York, et. al, Index No. 158368/2021 (New York Co. September 22, 2021); Bridges, et al v. Houston Methodist Hospital, et al., H-21-1774 (SD Tex. June 12, 2021).
This said, employees who are afflicted with disabilities that make it dangerous for them to be vaccinated, as well as employees with sincerely-held religious beliefs, may be able to seek a reasonable accommodation. Each employer has its own process for requesting those accommodations, and determining whether there is a reasonable accommodation available involves an interactive process that requires the cooperation of both employer and employee. Below, we recap several FAQs from our previous vaccination article.
Can my employer demand that I receive the COVID-19 vaccine as a condition of employment?
Yes. Requiring the vaccine is not a medical exam, nor does it seek information about your current health status or impairments. A vaccine mandate does not in itself violate discrimination laws if the mandate allows a case-by-case assessment of whether there a reasonable accommodation could be provided for those who need it.
What if I do not want to be vaccinated because of my disability or because of my sincerely-held religious beliefs?
If your disability or religious beliefs prevent you from being vaccinated, you may request an accommodation from your employer. When you request an accommodation, your employer needs to determine if you, as an unvaccinated employee, pose a “direct threat” to the health and safety of yourself or others, and whether the threat can be eliminated or reduced by a reasonable accommodation.
If the assessment results in a finding of direct threat, your employer will try to determine if there is a reasonable accommodation that would allow you to continue to work. This interactive process includes getting information from you and your doctor or religious leader. It is important for employees to cooperate in the interactive process; failure to do so can result in termination. Keep in mind that your employer does not have to provide the specific accommodation that you request. Also, if your employer genuinely cannot come up with a reasonable accommodation, you may be terminated.
Can my employer ask for proof that I have received the COVID-19 vaccine?
Yes. Simply requesting proof of a COVID-19 vaccine is not likely to elicit information about a disability and, as such, is not a disability-related inquiry that would trigger ADA or other health information privacy protections. However, if you have not been vaccinated due to a medical condition, you’ll need to be prepared to request an accommodation, which will require you to provide medical information to allow the employer to determine what kind of accommodation can be provided.
Do I have ADA protection if my employer administers the COVID-19 vaccine ?
Yes. The pre-vaccination medical screening questions are likely to elicit information about your health. When these questions are asked by your employer (this might happen in the healthcare context), they meet the ADA definition of a “disability-related” inquiry, and, as a result, you are entitled to ADA protection. The ADA requires that the disability-related screening questions be “job related and consistent with business necessity.” If you are concerned that your employer’s mandatory vaccination program does not meet this threshold, contact an attorney for advice.
On March 31, 2021, Governor Cuomo signed the Marijuana Regulation and Taxation Act [“MRTA”] into law. The MRTA legalizes the recreational use of marijuana in New York for individuals over the age of 21 and expands New York’s existing medical marijuana program. While the law takes effect immediately, the sale of recreational marijuana is not expected to become legal for at least a year from the enactment date while the state works to create a regulatory framework for the cannabis industry.
This blog post will discuss how the use of marijuana, whether for a medical or recreational purpose, may impact your workplace rights. As a warning to all, it is important to understand that the recently passed legislation does not give one free license to show up for work under the influence of marijuana. In fact, some workplaces can still impose discipline if an employee tests positive even if s/he was not under the influence while at work. It must be understood that if you are under the influence of marijuana at work you are subject to discipline, up to and including termination. If you test positive and your employer is subject to safety regulations, your employer may impose similar discipline, even if you were not under the influence while at work.
Medical Marijuana Use
New York’s Compassionate Care Act [“CCA”] allows for, and regulates, the cultivation, distribution, prescription, and use of marijuana for medical purposes. The CCA allows approved organizations, such as hospitals and community health centers, to dispense medical marijuana to patients who have been certified by their health care provider and who have registered with the state Department of Health. Although federal criminal law forbids the possession, distribution, sale, or use of marijuana, thanks to the CCA, in New York the United States Department of Justice does not currently enforce criminal law provisions against individuals and entities engaged in the cultivation, transportation, delivery, prescription, or use of medical marijuana in accordance with state law.1
The CCA states that “certified patients” have a “disability” for the purposes of state antidiscrimination law. N.Y. Pub. Health L. §§ 3360(3), 3369(2). As a result, under New York State Human Rights Law, employers may not discriminate against an employee or job applicant based on lawful use of medical marijuana. N.Y. Exec. L. §§ 292(21), 296(1)(a). While under New York’s CCA, people with serious medical conditions may legally use marijuana in the manner prescribed by a registered care provider who is licensed to dispense, it is important to understand that this does NOT mean that a certified medical marijuana patient can show up for work under the influence or use medical marijuana in a manner that violates workplace rules. In addition, the CCA specifically exempts employers from doing “any act that would put the [employer] in violation of federal law or cause it to lose a federal contract or funding.” This means your employer may be exempt from following the CCA if subject to federal regulation, such as Department of Transportation rules.
Here are a few examples of how New York’s Human Rights Law and the CCA may, or may not, protect your rights if you are a certified medical marijuana patient.
I’m a certified user of medical marijuana and, while I was not under the influence of marijuana at work, I tested positive after a random drug test. Can I get fired?
It depends. As a certified medical marijuana patient, you are “disabled” under New York law and, therefore, are a member of a protected class. As such, before imposing discipline, your employer must engage in a good faith interactive process to assess your needs and determine if there is a way to accommodate your use of medical marijuana that does not impose an undue hardship on the employer. If you work in a safety sensitive position, in a job subject to federal regulation, and/or your use of medical marijuana poses a direct threat to yourself, co-workers, or customers, your employer may have grounds to terminate even if you were not under the influence of marijuana while at work.
I am a certified medical marijuana patient and report to work under the influence of marijuana or use marijuana during my shift. Can I get fired?
Yes. In fact, a New York employer is free to fire, discipline, or take other adverse action against an employee who uses marijuana at work or shows up to work under the influence of marijuana—even if you need it to treat a medical condition. The understanding is that marijuana use to address your underlying health condition must occur when you are off the clock and at intervals that allows you to be at work when you are not under the influence.
I am a certified medical marijuana patient with a conditional offer of employment. I tested positive for marijuana and synthetic tetrahydrocannabinols (THC) during the pre-hire drug test. After explaining that I am a certified medical marijuana patient, my employer withdrew the offer on the spot. Is this legal?
It depends. Once your prospective employer is on notice that you are a certified medical marijuana patient, the law requires the employer to engage in a good faith interactive process to assess your needs and determine if there is a reasonable accommodation that will allow you to perform the essential functions of your job as a medical marijuana patient. An employer is obligated to participate in an interactive process even if the employer is subject to federal regulations that prohibit hiring or retaining employees that test positive for scheduled substances. If there is a way to accommodate your use of medical marijuana that does not impose an undue hardship on the employer, or create a direct threat to yourself, co-workers, or customers, you should not be denied the job. If you feel the sole reason you were not hired is due to your status as a medical marijuana patient, you may want to contact an attorney to discuss your rights.
If you are applying for a job in New York City on or after May 10, 2020, you will benefit from a local law amending the New York City Human Rights Law to prohibit pre-employment testing for marijuana and synthetic tetrahydrocannabinols (THC). See N.Y. Pub. Health L. §§ 3302(21), 3306(d)(21). This prohibition on marijuana testing in the hiring process, however, does not apply if you are seeking employment in a safety sensitive position, such as law enforcement, elder care, or medical services.
Recreational Marijuana Use
The MRTA amended the New York Labor Law provision that prohibits employers from refusing to “hire, employ or license, or to discharge from employment or otherwise discriminate against an individual” for engaging in legal recreational activities outside of work. N.Y. Lab. L. §201-d(2). As amended, the provision now provides that the recreational use or consumption of marijuana outside of work hours, off an employer’s premises, and without use of the employer’s equipment or other property, constitutes lawful recreational activity.
As a practical matter, the MRTA’s amendment of the Labor Law limits an employer’s ability to discipline employees for their recreational use of marijuana but, be forewarned, there are still employment related limits imposed on an employee’s right to partake and exceptions to the law that allow an employer to impose discipline. Consider the following:
- Nothing in the law “is intended to limit the authority of…employers to enact and enforce policies pertaining to cannabis in the workplace” or “exempt anyone from any requirement of federal law.” In other words, employees still must adhere to workplace drug policies. Also, under federal law, marijuana use is still illegal. The CCA’s protection from criminal prosecution for use of medical marijuana does not extend to recreational use.
- “Work hours” means all work time, “including paid and unpaid breaks and meal periods” and “all time the employee is actually engaged in work.” N.Y. Lab. L §201-d(c). As such, an employee is subject to discipline for marijuana use during break time or a rest period during the workday, even if not on the clock.
- Employers retain their ability to discipline an employee who is “impaired” by marijuana while on the job. The MRTA defines the term “impaired” as when an “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 workplace, free from recognized hazards, as required by state and federal occupational safety and health law.” However, the MRTA does not define “specific articulable symptoms,” and until the state releases interpretive guidance, employers are likely to define the term broadly.
- An employer does not violate N.Y. Lab. L. §201-d if its response to an employee’s recreational use of marijuana: 1) is required by state or federal law; or 2) if failing to do so would leave the employer in violation of federal law or lead to the loss of a federal contract or funding.
If you have questions about your workplace rights surrounding the legal use of marijuana, you should consider consulting an attorney.
This is the second installment of a series of blog posts aimed at helping hospitality workers understand their rights under the Hospitality Industry Wage Order [“HIWO”], a complex group of multifaceted provisions that establish a wide variety of wage and hour rules for the hospitality industry. This blog post will explain when a hospitality worker is entitled to receive extra compensation for maintaining a uniform.
Under HIWO, employers are generally required to pay “uniform maintenance pay” to help compensate an employee for the cost of maintaining a required uniform. 12 NYCRR §146-1.7. The weekly payment for uniform maintenance varies depending on where your workplace is located in the state, the number of hours you work each week, and in some localities, the number of employees on the payroll. For example, if you work in a restaurant in Syracuse, NY, your weekly uniform maintenance pay in 2021 will range from $7.45/week to $15.55/week, depending on the number of hours you work during the week. If you work at a restaurant in Manhattan with 11 or more employees, your weekly uniform maintenance pay in 2021 ranges from $8.90/week to $18.65/week, depending on the number of hours you work during the week.
There are exceptions to the general rule described above. So, before you demand compensation for maintaining your uniform, make sure your employer’s practice does not fall under one of these exceptions.
First, if your employer regularly launders your uniform free of charge, has an adequate supply of clean, properly fitting uniforms at the ready, and individually informs you in writing of the above, BUT you choose not to take advantage of this, you forfeit your right to receive uniform maintenance pay.
Second, your employer is not required to pay uniform maintenance pay when the required uniform is made of “wash and wear” material that can be laundered along with your own garments, provided you are given (at no cost to you) a sufficient number of uniforms consistent with the average number of days you work each week.
So, how many uniforms does an employer have to provide to avoid its uniform maintenance obligation?
This very question was explored by the court in Gregory v. Stewart’s Shops Corp., 2016 U.S. Dist. LEXIS 89576 (NDNY 2016). In this case, a hospitality industry employer’s policy of providing two or three uniforms to full-time employees was challenged by employees who claimed the HIWO required an employer to provide a number of “wash and wear” uniforms equal to the number of days per week an employee regularly worked. The employer argued that a sufficient number of uniforms did not require them to provide one uniform for each day of the week the employee generally worked. The court ruled in favor of the employer, reasoning that the authors of the HIWO had a chance to draft a bright-line rule such as one uniform for each day of the week the employee generally works, and they did not. Therefore, the subjective standard of a “sufficient number” is the rule.
Here is the take-a-way. If you work as a server five days a week your employer is not required to provide you with five “wash and wear” uniforms. Instead, your employer must provide you with a sufficient number of “wash and wear” uniforms, perhaps two or three. If you are working five days a week and are provided with only one or two required “wash and wear” uniforms, you are likely entitled to uniform maintenance pay. If you are required to wear a uniform and you must pay for the uniform(s), you are also likely entitled to uniform maintenance pay because, technically, your employer has not furnished a sufficient number of uniforms. Finally, if your required uniform is not of the “wash and wear” variety, you are likely entitled to uniform maintenance pay, regardless of the number of uniforms provided and the number of days you work each week.
If your employer is subject to the HIWO and you suspect a compliance issue, you should contact an attorney or the New York State Department of Labor.
Discrimination on the basis of an employee’s marital status is prohibited under Section 296 of the New York State Human Rights Law and under Section 8-107(a) of the New York City Administrative Code. However, “marital status discrimination” might not be what you think it is – and the definition is different depending on whether you are looking at the State statute or the New York City statute.
- Under New York State Law, Marital Status Discrimination Is Not…
The decision to be aware of here is Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeal Board, 51 N.Y. 2d 506 (1980), which went like this: Notwithstanding an employer’s anti-nepotism rule, an employee had worked under the supervision of her husband for approximately four years. When a new manager took over, he terminated the wife’s employment pursuant to the anti-nepotism rule. The New York State Court of Appeals concluded that the employer’s action was not marital status discrimination. How is this possible? Because, reasoned the Court, marital status is a question of whether the employee is married, single, widowed, separated, or divorced. Marital status has nothing to do with whom the employee is married to. The employee in Manhattan Pizza Hut was not fired because she was married, but because she was married to her supervisor.
The Manhattan Pizza Hut logic has carried into situations where a company refused to hire an applicant because her husband was already employed there (Matter of Campbell Plastics v. New York State Human Rights Appeal Board, 81 A.D. 2d 1991 (3rd Dept. 1981)) and to a denial of health insurance to an employee who has comparable coverage under a spouse’s insurance benefit (Police Ass’n v. NYS PERB, 126 A.D. 2d 824 (3rd Dept. 1987)). A corrections officer who married an inmate was discharged, not because of her status as “married,” but because she broke a rule against having a relationship with an inmate. Vega v. Dept. of Correctional Services, 186 A.D. 2d 340 (3rd Dept. 1992). In Cramer v. Newburgh Molded Products, 228 A.D. 2d 541 (2d Dept. 1996) an allegation that a plaintiff was terminated “because she was married to Joseph Cramer” did not survive a motion to dismiss because the termination was based on her being married “to Joseph Cramer” rather than simply on her being married. In McGrath v. Nassau Health Care Corp. , 217 F. Supp. 2d 319 (EDNY 2002), an employee who was sexually harassed did not additionally have a marital status discrimination claim even though her harasser made comments to the effect that she would be “stupid” to marry her fiancé, refused to give her time off to plan her wedding, told her she should not be sleeping with her husband, and tried to dissuade her from going through with the marriage during the wedding.
- Marital Status Discrimination Might Be…
In Kipper v. Doron Precision Systems, 194 A.D. 2d 855 (3rd Dept. 1993), an employee’s marital discrimination suit survived dismissal because there was evidence his supervisor told him he was chosen for layoff because he would not experience financial hardships as severe as his married co-workers. The Kipper plaintiff was not laid off because of his involvement or non-involvement with anyone in particular, but because the employer considered him less vulnerable to financial hardship because he was single.
- Meanwhile, in New York City…
Contrary to State Law, New York City’s marital status discrimination prohibition is given a “broader meaning than simply married or not married.” Morse v. Fidessa Corp., 165 A.D. 3d 61 (1st Dept. 2018). In direct contrast to the State Court of Appeals’ analysis of State Human Rights Law, the First Department has concluded that the “plain meaning” of marital status includes who the person is married to. In Fidessa, the First Department rejected the Manhattan Pizza Hut definition of “marital status” and specifically found that, under New York City Code, it also encompasses who is married (or not married) to whom.
Likewise, very recently, where a University rescinded its invitation to be part of a new institute following a professor’s divorce from another professor, the NYC marital discrimination suit survived summary judgment. Karayiorgou v. Trustees of Columbia University, 2021 N.Y. Slip. Op. 31044(U) (NY Co. January 14, 2021). Although factual issues of Karayiorgou remain to be determined, the Court noted strong evidence that the professor had been invited on the strength of her significant contributions to the scientific community, and that un-inviting her based on her ending her relationship with another professor not only constituted marital discrimination, but also smacked of gender bias in that the University’s arguments tried to downplay the plaintiff’s credentials and accomplishments.
- What About Other States?
Unfortunately, for the vast majority of employees, federal discrimination law does not specifically prohibit discrimination on the basis of marital status. A survey of the 50 states’ laws on marital discrimination is beyond the scope of this article, so as always we strongly encourage you to consult with a qualified employment attorney in your jurisdiction.
- Wait, am I protected or not?
Short answer: Employees in New York City have relatively strong protections against marital status discrimination. Employees in New York State have protections that have been significantly limited by decisional law. Protections in other states depend on state and local laws and regulations. Bottom line, if you believe you have been discriminated against due to your marital status, the first thing you should do is contact an employment lawyer in your jurisdiction to see what kind of protections you might have, and what if anything can be done to protect your rights.
 Surviving a motion to dismiss just means that the case isn’t thrown out of court. It doesn’t mean he won.
 Notice anything about the breakdown between plaintiffs’ genders in Item #1 versus Item #2? Don’t try to hang your legal hat on it, but it may say something about what these decisions are trying to accomplish.
 Like a motion to dismiss, surviving summary judgment just means that the case isn’t thrown out of court. It doesn’t mean she won.
 Employees in the Federal Civil Service do have some protections under the Civil Service Reform Act of 1978, which includes marital status as a protected status.
On March 12 New York passed a law [link here] entitling New York workers to up to four hours of paid leave for COVID-19 vaccinations. That is four hours per injection, which means if you get the Moderna or Pfizer injection, you get a total of two four-hour chunks of leave to get the shots.
Employers have to provide this leave in addition to other leave, which means they can’t make you use sick leave or New York State Paid Leave to cover your vaccine leave.
The leave must be paid at your regular rate. Retaliation against employees who take vaccination leave is illegal.
The law amends New York Civil Service Law to add Section 159-c, which applies to public employees, and New York Labor Law to add 196-c, which applies to pretty much everyone else.
The law expires on December 31, 2022.
Get out there and get your “Fauci Ouchi!”
By Susan McNeil
Without a doubt, we are living in turbulent times. If the current social and political climate is inspiring you to participate in a protest or post your opinions on social media, be aware that your actions may get you in trouble with your employer. A timely example of this is the fallout from the protest at the U.S. Capitol on January 6, 2021. Some individuals who participated in the protest have been disciplined by their employers, even terminated. Others have faced discipline at work for posting passionate tweets about the protest or other controversial issues.
Query: Can these individuals be subjected to discipline by their employers for their actions or are their expressions protected by the First Amendment of the U.S. Constitution?
The First Amendment to the U.S. Constitution does not protect all speech.
Generally speaking, the First Amendment to the U.S. Constitution, which is the basis for free speech protection, only prevents state actors, such as the federal and state government, from interfering with freedom of speech. As a result, government, or public sector, employees have some First Amendment protections but the same is not true for private sector workers.
It is important to understand that, even if you work in the public sector, not all speech is protected by the First Amendment. A public sector employee can still be disciplined when speech has a negative impact on the function of the public employer or adversely affects morale. Before imposing discipline, the public employer must balance “the interests of the [public employee], as a citizen, in commenting upon matters of public concern, and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education, 391 U.S. 563, 568 (1968). As a practical matter, if a public sector employee’s speech is discriminatory or obscene, a public employer can likely discipline the employee without running afoul of the First Amendment.
The First Amendment does not extend free speech rights to private settings, including private workplaces. So, a private sector employee’s social and political expressions are not shielded from employment consequences under the guise of freedom of speech and may very well result in workplace discipline. However, private employers cannot discipline employees for speech if the speech is protected by another law. For example, the National Labor Relations Act [“NLRA”] protects employees’ rights to communicate with one another about the terms and conditions of their employment. More specifically, employees have the right to engage in “protected activity” regarding their workplaces—talking about wages, sharing grievances, and organizing online are all protected activity under the NLRA. This is true in both union and non-union workplaces. Employees who are fired for posting online complaints about their wages, benefits, tip sharing arrangements, management, hours, or other work conditions could have a strong legal claim under the NLRA. Similarly, Title VII prohibits a private employer from imposing discipline on employees who express opinions in opposition of discrimination and harassment.
If you work in New York, you may have some protection from being terminated or otherwise disciplined for off-duty conduct. N.Y. Lab. L §201-d. More specifically, this provision makes it unlawful for an employer to discriminate against an employee because of their political activities or legal recreational activities outside of work hours provided the activities do not take place on the employer’s premises and do not use the employer’s property. Under this provision, protected political activities do not include protesting however, arguably, a peaceful protest may fall within the category of “legal recreational activities.”
Bottom line: Not all speech is shielded from adverse employment consequences so think twice before you post on social media or otherwise express your social and political opinions.
Of course you want to take your story to the press. You feel you owe it to other employees to expose what has happened to you. It could be the trial of the century. Whether you want to explain it to TikTok, get hugs from Facebook, or rant on Twitter, the world needs to know what these people are doing to you, right?
Getting your story out may feel very satisfying in the short-term, but you may end up regretting the legal consequences later.
First, if you are pursuing legal action, or considering pursuing legal action, every word you say to the press or on social media could end up as evidence admissible in court – evidence you don’t want admitted. Plus, if your complaint uses the word “bluegreen” and your Facebook post says “turquoise,” the other side’s attorney is going to have a heyday with the perceived inconsistency. Even totally innocent statements can be twisted to contradict a key element of your claim, and your lawyer may not be able to untangle the mess.
Second, if you’re making allegations you can’t prove, the other side may be able to turn around and sue you for defamation. While in some states, statements made “in the course of litigation” may be privileged, the other side is going to have a mighty strong argument that allegations made on Twitter or in an email to a reporter aren’t made “in the course of litigation.”
Third, any time you speak you risk divulging confidential information. So if the employer thinks there is a confidentiality breach, you might find yourself getting sued for that breach.
Fourth, the employer might be willing to make a settlement offer – in return for a nondisclosure agreement. But an employer who is already paying lots of money to a PR firm to clean up the bad press you’ve created might not see a reason to pay you, too.
Fifth, you’ve heard of internet trolls. Internet backlash is real, vicious, and devastating, No matter how angelically you have behaved, some stranger out there may take devilish glee in throwing mud—or worse—at you.
What if the press contacted me?
All of the above applies, times 100. If the press contacted you then the last thing you want is to feed the fire at the same time you destroy your own case.
But the other side is saying terrible things about me!
Two points here: First, if the other side is an employer, they can afford a lot more PR firm time than you can. Second, see above about all the ways a public statement can backfire. That said, if you have had a long talk with your attorney and your attorney has given you the go-ahead, preferably with a very careful set of rules about what you will and will not say, then it’s ok to respond to media attacks – but stick to the script. If you go off-message, you’re going to pay for a lot of legal hours while your lawyer cleans up the mess.
So mum’s the word?
Well, no. Your attorney may have some reasons for wanting to release measured statements. For example, if your matter involves a large group of people who may have experienced the same workplace violation, your lawyer may want to enlist the press in finding other victims. The same method can help locate witnesses. In some circumstances, the lawyer may even consider it useful to for you to give a statement.
Bottom line: Whatever you do, if you want to win your suit, never speak to the press without consulting legal counsel first.