Free Speech

Laws Protecting Private Employees' Speech and Political Activity Against Employer Retaliation: Broad Protection for Off-Duty Lawful Activity

Colorado, Montana, New York, North Dakota.

|The Volokh Conspiracy |

[This is a serialization, with slight updates, of my 2012 article on the subject; for the Introduction (which also discusses my ambivalence about such laws), see this post.]

On, then, to the specific laws, beginning with ones that protect off-duty lawful activity (or, in the case of Montana, require good cause for firing more broadly).

[A.] Engaging in Any Off-Duty Lawful Activity—Colorado and North Dakota

Two state statutes generally bar employers from restricting employees' off-duty lawful activity. "Lawful activity off the premises of the employer" is broad enough to include speech, and court decisions have expressly interpreted such a statute to cover speech.[1]

Colorado: [No employer may] terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction:

(a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or

(b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.

North Dakota: [No employer may discriminate against an employee or applicant] because of … participation in a lawful activity that is off the employer's premises and that takes place during nonworking hours

[a] [unless that participation is] in direct conflict with the essential business-related interests of the employer … [or]

[b] contrary to a bona fide occupational qualification that reasonably and rationally relates to employment activities and the responsibilities of a particular employee or group of employees, rather than to all employees of that employer.

Colorado also has another statute, which we'll discuss in a future post, protecting employees' "engaging or participating in politics."

[B.] Engaging in Off-Duty "Recreational Activities"—New York

New York bars employer retaliation for off-duty "recreational activities," including, among other things, "reading and the viewing of television, movies, and similar material." A separate part of the statute, which we'll discuss later, expressly protects partisan political activities.

The New York law's protection for receiving speech suggests there is similar protection for conveying speech. Court decisions have indeed treated "recreational activities" as including arguing about politics at a social function[2] and participating in a vigil for a man killed because of his homosexuality.[3]

But one court has held that picketing is not sufficiently "recreational" to qualify.[4] Other New York courts have likewise held that certain non-speech activities—dating[5] and organizing and participating in "after-work celebrations with fellow employees"—that might normally be seen as recreational nonetheless are not covered by the statute. This suggests that "recreational activities" might likewise be read narrowly in some speech cases.

New York: (1) … (b) "Recreational activities" shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material ….

(2) … (c) [No employer may discriminate against an employee or prospective employee] because of … an individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property …

(3)(a) [This section shall not be deemed to protect activity that] creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest ….

(4) [A]n employer shall not be in violation of this section where the employer takes action based on the belief … that: … (iii) the individual's actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct.

[C.] Engaging in Activity (On- or Off-Duty) That Doesn't Create "Reasonable Job-Related Grounds for Dismissal"—Montana

Montana is the only state that generally bars employers from firing people absent good cause; this would include many dismissals based on an employee's speech or political activity.

Montana: [An employer may not discharge an employee] if … the discharge was not for [reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reasons] and the employee had completed the employer's probationary period of employment [or six months, if the employer did not establish a specific probationary period] ….

This provision is limited to actual and constructive discharge, and is not violated by minor demotions, failures to promote, or failures to hire. But, as we'll discuss in a later post, certain Montana employers are barred from all discrimination based on certain kinds of political activities.

[1].Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458 (D. Colo. 1997) (letter to the editor of a newspaper criticizing the employer); Gwin v. Chesrown Chevrolet, Inc., 931 P.2d 466 (Colo. App. 1996) (employee's demand to an off-the-job lecturer for a refund of money paid to attend the lecture); Angel v. Rayl, No. 04-CV-3420, 2005 WL 6208024 (Colo. Dist. Ct. Dec. 1, 2005) (dictum) ("read[ing] certain books," "see[ing] certain movies," "attend[ing] certain plays," "attend[ing] certain political or social-activism events," and "express[ing] certain opinions in letters-to-the-editor of the local newspaper").

[2].Cavanaugh v. Doherty, 243 A.D.2d 92, 100 (N.Y. App. Div. 1998) (treating an allegation that plaintiff was fired "as a result of a discussion during recreational activities outside of the workplace in which her political affiliations became an issue" as covered by the statute).

[3].El-Amine v. Avon Prods., Inc., 293 A.D.2d 283 (N.Y. App. Div. 2002) (affirming denial of summary judgment in a § 201-d(2) case apparently brought based on plaintiff's "involvement in a vigil for Matthew Shepard, the gay college student who was brutally murdered in Laramie, Wyoming," Jennifer Gonnerman, Avon Firing, Village Voice, Mar. 2, 1999).

[4].Kolb v. Camilleri, No. 02-CV-0117A(Sr), 2008 WL 3049855, at *13 (W.D.N.Y. Aug. 1, 2008) ("Plaintiff did not engage in picketing for his leisure, but as a form of protest. While the Court has found such protest worthy of constitutional protection, it should not engender simultaneous protection as a recreational activity akin to 'sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.'").

[5].E.g., Hudson v. Goldman Sachs & Co., 283 A.D.2d 246 (N.Y. App. Div. 2001) ("romantic relationships are not protected 'recreational activities'"); State v. Wal-Mart Stores, Inc., 207 A.D.2d 150 (N.Y. App. Div. 1995) ("dating is entirely distinct from … recreational activity") (internal quotation marks omitted). But see id. at 153 (Yesawich, J., dissenting) (arguing that dating should be seen as covered).

NEXT: Trump's New Fair Housing Rule Prioritizes Toxic Culture War Politics Over Deregulation

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  1. This is good. Right?

  2. It seems like all these states have exceptions for “interest of company” reasons.

    So if a company has a policy that says we value all customers, employees, suppliers, vendors, investors etc., then it seems like they have a valid reason to fire someone who posts that they hate (niggers, Mexicants, Jews, etc.).

    1. Well, I discuss that in item 7 of my “cross-cutting questions” post:

      Some statutes do expressly allow employers to restrict employee speech when abstaining from the speech is a BFOQ, when the speech is “in direct conflict with the essential business-related interests of the employer,” or when the speech creates “reasonable job-related grounds for dismissal.” Do these exceptions cover speech that interferes with the employer’s activities by leading customers or coworkers to dislike the employer—for instance, when the speech is critical of the employer, or when the speech offends some people?

      Generally speaking, when the term “bona fide occupational qualification” is used with regard to sex discrimination or religious discrimination, customer or coworker hostility is not seen as sufficient to trigger the BFOQ exception. In the Equal Employment Opportunity Commission’s words, “the preferences of coworkers, the employer, clients or customers” “do not warrant the application of the bona fide occupational qualification exception.” Thus, for instance, that some people are offended or alienated by an employee’s religion does not justify the employer in firing the employee. When laws that ban discrimination based on off-duty conduct (including speech), speech, or political affiliation use the same phrase, this suggests that employers likewise may not fire an employee just because his off-duty actions offend customers or coworkers.

      Nonetheless, some cases interpreting the statutes give employers a good deal of authority to restrict speech that turns customers against the employer. Thus, a district court interpreting the Colorado statute’s exception for restrictions that “relate[] to a bona fide occupational requirement” held that (1) an employer could treat an employee’s loyalty as a bona fide occupational requirement, and that (2) an employee’s letter to a newspaper complaining about alleged mistreatment of employees and poor customer service breached such a duty, though (3) public complaints about safety would not breach the duty.

      Likewise, a New York appellate court read an exception for activity that “creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest” as allowing the German National Tourist Office to fire an employee for becoming known as the translator of some Holocaust revisionist articles. Presumably the court’s view was that the activity could lead to public hostility to the office, and that this hostility created a “conflict of interest” between the employee and the employer’s “business interest.”

      Other cases, however, consider some speech to be protected even when it does injure the employer. The Colorado case mentioned above is a partial example, because it concluded that public complaints about safety would be protected against employer retaliation even when they injure the employer. Likewise, a Connecticut case held that a statutory exception for speech that “substantially or materially interfere[s] with the employee’s bona fide job performance or the working relationship between the employee and the employer” did not cover an employee’s report to a state agency of “allegedly wrongful or illegal conduct” by the employer’s customer.

      The employee, a worker for a home nursing company that sold services to nursing facilities, reported substandard care at one of the facilities. The court acknowledged that “[i]t may be true that [the employer’s] business relationship with their customer was impacted negatively as a result of the reporting of violations by the plaintiff.” But, the court concluded, such speech is “the exact kind of ‘expression[] regarding public concerns that are motivated by an employee’s desire to speak out as a citizen’ to which … this statute applies.”

      1. So the exceptions have narrow exceptions.

        Got it.

      2. “…the activity could lead to public hostility”
        “…complaints about safety”

        So then, perhaps employee speech/opinion/etc. could be protected subject to a BFOQ exception, whereby BFOQ in that context means:

        1) Employers may only base decisions upon an employee’s expressions/associations IF a) the nature of the employment calls for holding certain viewpoints (e.g., a political issue based organization), OR b) such expressions/associations violate a true social norm, meaning going against a strongly established *consensus* such that no significant portion of the population currently disagrees; and

        2) Employers may only demand general loyalty to the extent that this does not require employees to be complicit in something that a *consensus* of the population would find wrongful.

        —–

        (#1b would prevent people’s livelihoods from being weaponized in social controversies, while not forcing employers to accept undue disruption.)

  3. Eugene, as you point out, NY has a pretty broad statute. In my job, I would expect to see a lot of cases under it. But I don’t, and my quick research is consistent with what I see, or, rather, don’t see. Any thoughts on why this might be so? Perhaps employers rarely bother about off-duty activity? Perhaps lawyers don’t know about it?

    1. CJColucci: An excellent question. I’ve long wondered the same thing; as you’ll see, the California statute is also quite broad, though it applies just to speech and not all off-duty activity. Why so little litigation? I don’t know, though both of your speculations (employers relatively rarely firing employees for such activity, and lawyers not knowing much about the statutes) are plausible.

      Different statutes in different states also offer different remedies, some of which are much less generous than the remedies available under many other employment discrimination statutes. New York, for instance, provides for damages and injunctive relief, but I don’t think it allows prevailing plaintiffs to recover attorney fees, something that I believe prevailing Title VII plaintiffs generally get. (It also doesn’t allow punitive damages and emotional distress damages.)

      1. Perhaps because the vast majority of people refrain from problematic actions not from any fear of their employer but because they are normal people with good sense.

        Employers also have methods of signaling problematic employees that don’t fit into the company culture that their future oportunities are limited.

  4. Not that this changes your analysis or overall scholarship, but my understanding is that at least some of these laws — such as Colorado’s — stemmed from smoking advocacy, protecting workers from being fired for smoking off the job.

    1. Yes, I think that’s the origin, and some such statutes are limited to protecting off-duty use of lawful products. But the Colorado, New York, and North Dakota ones apply to lawful off-duty activities more broadly.

  5. If dating isn’t a recreational activity, you’re doing it wrong.

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