In Evseroff v. Scripps Media, Inc., No. 150375/2020, 2026 WL 95490 (N.Y. Sup. Ct. Jan. 06, 2026), the court, inter alia, granted defendants’ motion for summary judgment on plaintiff’s claim under Labor Law § 201-d.
This claim arises from plaintiff’s termination following a Facebook post with a photo of the World Trade Center in the wake of the attacks of September 11, 2001, over which the words “ ‘Never Forget’-You Said” were superimposed, above a photo of Representative Ilhan Omar.
As explained by the court, Labor Law § 201-d(2)(c) provides that:
Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of … an individual’s legal recreational activities, including cannabis in accordance with state law, outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property.
(Labor Law § 201-d[2][c]).
The court continued:
The statute defines “recreational activities” as 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” (Labor Law § 201-d[1][b]). The statute also provides, however, that “[t]he provisions of subdivision two of this section shall not be deemed to protect activity which … creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest” (Labor Law § 201–d[3][a]).
Even assuming that posting on social media is a recreational activity under Labor Law § 201-d and that the statute’s protections “encompass[] the public expression of one’s views” in a social media post–questions that remains unsettled (see Sander v Westchester Reform Temple, ––– NE3d ––––, 2025 NY Slip Op 0695 at *2 [2025])–the record demonstrates that the Facebook Post “created a material conflict of interest with defendant’s business interest,” insofar as it “invite[d] a public backlash” against WPIX and therefore, per Labor Law § 201-d(3)(a), falls outside the statute’s protections.
This decision thus illustrates that the “recreational activities” discrimination statute is limited, and does not literally apply to every circumstance.