E. Legal Activities Off-Premises

Beginning in the late 1960s, the United States Supreme Court ruled that government employees could not be fired in retaliation for the exercise of free speech. The notion of free speech, privacy, and related constitutional protections has now been expanded to private employees in certain instances, particularly in states that have enacted broad civil rights laws.

For example, in some states, a private employer cannot discipline, fail to promote, or fire an employee because the company does not agree with the employee's comments on matters of public concern. A majority of states have laws that prohibit employers from influencing how their employees vote. Attempts to regulate off-duty legal conduct is also sanctioned.

Most states have laws making it illegal for companies to fire workers who participate in legally permissible political activities, recreational activities, or the legal use of consumable products before or after working hours. Political activities include running for public office, campaigning for a candidate, and participating in fund-raising activities for a candidate or political party. Those activities may be protected if they are legal and occur on the employee's own time, off company premises and without the use of employer property or equipment.

Recreational activities are defined as any lawful leisure-time activities for which the employee receives no compensation. The definition of consumable products even protects the rights of people who smoke cigarettes or drink alcohol before and after working hours and off the company's premises.

The right not to be demoted, retaliated against, or fired for engaging in these legally permitted activities generally depends on state law. To date, many states have passed laws making it illegal to be fired from a job because you are a smoker and smoke off premises; the trend is for more states to follow. In New York, employers cannot discriminate in hiring, promotion, and other terms of employment due to off-duty activities in four specific categories: political activities, use of a consumable product, recreational activities, and union membership or exercise of any rights granted under federal or state law (such as voting). However, a female employee was recently fired by a New York company for dating a co-worker after hours. She sued the employer and argued that her discharge violated this law. The judge, however, ruled that having a sexual relationship was not included in the definition of a "recreational activity" as defined by the statute (sky diving, scuba diving, bungee jumping, and overeating were included) and ruled against her.

Counsel Comments:In the vast majority of states with such laws, it is illegal to refuse to hire smokers. It may also be illegal to discriminate against smokers by charging higher insurance premiums unless the company can demonstrate a valid business reason, such as higher costs. However, women who smoke off-duty must still comply with existing laws and ordinances prohibiting smoking on-premises, such as only in designated areas. And just because it may be legal to drink alcohol off-premises late into the night does not give you the right to stagger into work drunk the next morning.

Employers who violate state law in this area are generally subject to a lawsuit by their state's Attorney General seeking to restrain or enjoin the continuance of the alleged unlawful conduct. Significant penalties are provided in most of these laws. Additionally, individuals may commence their own lawsuits and recover monetary damages and other forms of relief, including attorney fees, under the laws of many states.

Tip:Contact a representative at the American Civil Liberties Union (ACLU) in New York City for advice and guidance if you are being pressured to stop asserting legal political activities, affiliations, or political action. This includes.findlaw organizing together with other workers to protest poor working conditions. In one recent California case, a group of individuals organized to promote equal rights of homosexuals at a large company via a class action lawsuit. The court ruled that such activity was protected by state law.

Since some states do not have specific laws protecting employees who engage in political activity and other activities, and the laws vary so, always consult with counsel and review applicable state law before engaging in questionable activities or taking action to protect such activities.