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Off-Duty Conduct and Termination

by mjpospis on February 19, 2016

in Articles, At Will Employment, Employment Contracts, Employment Discrimination, Retaliation, Social Media in Litigation

By now you’ve probably heard/read about Dr. Anjali Ramkissoon, who was caught on a now-viral YouTube video attacking an Uber driver. Reports indicate that her employer, Jackson Health System, has placed her on administrative leave. The video suggests that Dr. Ramkissoon was not working or “on the clock” during the incident.

This raises the question of whether, and to what extent, a private (non-governmental) employer may lawfully terminate an employee for off-duty conduct. I use the term “conduct” here broadly to include, for example, being a jerk (e.g., Ramkissoon) and social media posting.

A note about social media: If you are, or are considering, disparaging your employer on social media, you have an especially uphill battle; while nothing here is legal advice, you should nevertheless heed this warning: don’t. As for social media, the NLRB’s website is instructive, as is this article.

Contrary to what many believe, in New York – the following discussion is confined to New York law – an employee is not automatically insulated against employer action merely because the alleged basis for termination is the employee’s “off duty” conduct.

Generally, if a private employer terminates an employee for off-duty conduct, the employee will have no recourse under New York law UNLESS: (1) the employee is not an “at will” employee who has an employment contract that specifies the circumstances under which they can be lawfully terminated (i.e., termination “for cause”) AND the termination does not qualify as a termination-justifying event; or (2) the termination violates a specific law.

Breach of Employment Contract

The first question is whether the employee is an “at will” employee. New York law provides that

employment for an indefinite or unspecified term is presumed to be at will and [is] freely termina[ble] by either party at any time without cause or notice. The presumption of at will employment is inapplicable only if the employer and employee are parties to an agreement establishing a fixed duration. Marcus v. Leviton Mfg. Co., No. 15CV656SJFGRB, 2016 WL 74415, at *4 (E.D.N.Y. Jan. 6, 2016).

If the employee has a contract for a definite term that specifies the circumstances under which the employer may terminate them (typically set forth as reasons for termination “for cause”), the language of the contract will govern. That is, it would need to be determined whether the conduct at issue qualifies as a termination-triggering event under the agreement. If it doesn’t, the employee may have a breach of contract claim.

Answering this question, of course, requires an analysis of how the specific contract language applies to the facts.

Termination in Violation of Specific Law

Since New York does not recognize a claim for “wrongful termination” per se, an aggrieved at-will employee must base their termination claim on the violation of a specific law, such as Title VII of the Civil Rights Act of 1964, the New York City Human Rights Law, or – specifically regarding alleged off-duty conduct – New York’s so-called Lawful Activities Act, codified at New York Labor Law § 201-d.

General Anti-Discrimination Laws

Broadly speaking, the analysis under the anti-discrimination statutes boils down to whether the employer’s decision to terminate the employee was motivated, in part, by an unlawful purpose. The employer would have the opportunity to demonstrate that it terminated the employee for legitimate nondiscriminatory reasons; if it makes this showing the employee is then given the opportunity to demonstrate that the proffered reasons were “pretext” for unlawful discrimination.

One way of demonstrating “pretext” is showing that the plaintiff was subject to harsher discipline than a similarly-situated employee outside their class for a comparable infraction. See, e.g., Kemp v. CSX Transp., Inc., 993 F. Supp. 2d 197, 214 (N.D.N.Y. 2014).

One could argue, for example, that the fact that an employer who punishes only members of one group (say, Muslims) for engaging in certain off-duty conduct – while not punishing similarly-situated non-Muslims for engaging in the same off-duty conduct – is evidence of pretext and, hence, unlawful discrimination. This analysis is, of course, also heavily fact-dependent.

If the off-duty conduct (e.g., a social media posting) qualifies as “protected activity” under the laws prohibiting “retaliation” (and the other elements of that claim are satisfied), the employee may have a retaliation claim.

Lawful Activities

If the employee’s off-duty conduct is specifically protected – for example, under New York’s Lawful Activities Law – the employer may be liable under that statute. That law, NY Labor Law § 201-d, generally prohibits discrimination in employment because of an individual’s:

  • “political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property, if such activities are legal” [§ 201-d(2)(a)];
  • “legal use of consumable products prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property” [§ 201-d(2)(b)];
  • “legal recreational activities outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property” [§ 201-d(2)(c)]; or
  • “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” [§ 201-d(2)(d)].

NOTE: This statute contains various exceptions and limitations and has been interpreted narrowly. For example, it has been held that romantic dating is not statutorily-protected “recreational activity”, and § 201-d(5) specifically states that the statute does not “apply to persons who, on an individual basis, have a professional service contract with an employer and the unique nature of the services provided is such that the employer shall be permitted, as part of such professional service contract, to limit the off-duty activities which may be engaged in by such individual.”

Depending on the facts, other statutes may apply.

Conclusion

There is no absolute protection against being fired for off-duty conduct, particularly in New York where there is no cause of action for “wrongful termination” per se. That said, you may have legal rights after being fired if (1) the termination amounts to a breach of an enforceable employment contract, or (2) the termination violates a specific law.

Categories: Articles, At Will Employment, Employment Contracts, Employment Discrimination, Retaliation, Social Media in Litigation

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