Posted by Eugene Volokh:
Is It Legal for Human Rights Watch to Suspend an Analyst for Collecting Nazi 
Paraphernelia?
http://volokh.com/archives/archive_2009_09_13-2009_09_19.shtml#1253137489


   The underlying story is linked to [1]here; but what struck me is that
   New York -- the place where Human Rights Watch is headquartered, and
   where I take it Marc Garlasco is working -- has [2]a statute that
   generally prohibits employers from discriminating against employees
   based on their lawful recreational activities:

     [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. 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: ...

     c. 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. The provisions of subdivision two of this section shall not be
     deemed to protect activity which:

     a. 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.

     5. Nothing in this section shall 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....

   So while Garlasco's collecting Nazi memorabilia might well cause
   serious public relations problems for Human Rights Watch, the
   organization may not suspend him (suspension surely qualifies as
   discrimination in terms, conditions, and privileges of employment)
   based on such collecting -- assuming Garlasco "received no
   compensation" for the collecting -- unless one of the exceptions
   applies. What are the possible exceptions?

   Provision 5: Maybe Garlasco's contract qualifies as a "professional
   service contract" based on "the unique nature of [his] services," and
   the contract specifically provides that the employer may limit
   off-duty activities; I'm not sure, though, whether his services are
   "unique" enough that this would apply even if the contract has such a
   clause. If anyone knows more about this provision, or about the normal
   New York law or employment law definitions of "professional service
   contract" or "unique nature," I'd love to hear about it.

   Provision 4.iii: I doubt that one would conclude that Garlasco's
   collecting would reasonably qualify as being "incompetency or
   misconduct," though of course the terms are quite vague, and one could
   argue that any employee action that could lead to the public's
   devaluing the employee's work for his employer is "incompeten[t]."

   Provision 3.a: One could argue that Garlasco's conduct "creates a
   material conflict of interest related to the employer's ... business
   interest." In my experience, "conflict of interest" generally refers
   to some way in which an employee's activity potentially undermines his
   loyalty to the employer. But one case, Berg v. German National Tourist
   Office, 248 A.D.2d 297, 297 (1998), seemed to read the provision
   broadly enough to also cover actions that undermine the employee's
   utility to the employer, by exposing the employer to hostility
   stemming from public hostility to the employee's views. In Berg, the
   court found that the German National Tourist Office acted permissibly
   in firing an employee for becoming publicly known as the translator of
   some Holocaust revisionist articles. But is Berg, which is a single
   decision of the New York intermediate appellate court, not the state
   high court, correct? And would it also apply to the less incendiary --
   though obviously still unpopular -- behavior of collecting Nazi
   memorabilia?

   The First Amendment: Finally, it's possible that Human Rights Watch's
   First Amendment rights -- here, the rights to choose who writes and
   comments on its behalf -- might trump the New York statute in some
   situations. Compare Nelson v. McClatchy Newspapers, Inc., 936 P.2d
   1123, 1127 (Wash. 1997) (holding, by a 5-4 vote, that the First
   Amendment trumped such a statute when a newspaper demands that its
   reporters not engage in politics; that specific scenario is exempted
   from the New York statute, but the Washington court's logic may apply
   to other situations as well) with Ali v. L.A. Focus Publication, 112
   Cal. App. 4th 1477 (2003) (rejecting the claim that a newspaper "has
   the unfettered right to terminate an employee for any
   [outside-the-newspaper] speech or conduct that is inconsistent with
   the newspaper's editorial policies").

   I'm inclined to say that employers should indeed have broad rights in
   such situations, and in most states they would. It's also possible
   that under Berg, Human Rights Watch may indeed fire employees for
   doing anything that might make them or Human Rights Watch seem less
   credible. Still, the matter is not as clear in New York as it would be
   in most states, because of the statute I quoted above.

References

   1. http://volokh.com/archives/archive_2009_09_13-2009_09_19.shtml#1252986412
   2. http://law.onecle.com/new-york/labor/LAB0201-D_201-D.html

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