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New York Labor - Article 7 - § 201-D Discrimination Against the Engagement in Certain Activities

Legal Research Home > New York Laws > Labor > New York Labor - Article 7 - § 201-D Discrimination Against the Engagement in Certain Activities


Labor 
 
    §  201-d. Discrimination against the engagement in certain activities.
  1. Definitions. As used in this section:
    a. "Political activities" shall mean (i) running  for  public  office,
  (ii)   campaigning   for   a  candidate  for  public  office,  or  (iii)
  participating in fund-raising activities for the benefit of a candidate,
  political party or political advocacy group;
    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;
    c. "Work hours" shall mean, for purposes of this  section,  all  time,
  including  paid and unpaid breaks and meal periods, that the employee is
  suffered, permitted or expected to be engaged in work, and all time  the
  employee  is  actually  engaged  in  work.  This definition shall not be
  referred to in  determining  hours  worked  for  which  an  employee  is
  entitled  to  compensation  under  any law including article nineteen of
  this chapter.
    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:
    a.  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, provided, however, that
  this paragraph shall not apply to persons whose employment is defined in
  paragraph  six of subdivision (a) of section seventy-nine-h of the civil
  rights law, and provided further that this paragraph shall not apply  to
  persons  who  would  otherwise  be prohibited from engaging in political
  activity pursuant to chapter 15 of title 5 and subchapter III of chapter
  73 of title 5 of the USCA;
    b. an individual's 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;
    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; or
    d.  an  individual's  membership  in a union or any exercise of rights
  granted under Title 29, USCA, Chapter 7 or under article fourteen of the
  civil service law.
    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;
    b.  with respect to employees of a state agency as defined in sections
  seventy-three and seventy-four of the public officers law  respectively,
  is  in  knowing  violation of subdivision two, three, four, five, seven,
  eight or twelve of section seventy-three or of section  seventy-four  of
  the  public  officers law, or of any executive order, policy, directive,
  or other rule which has been issued by the attorney  general  regulating
  outside  employment  or  activities  that could conflict with employees'
  performance of their official duties;
    c. with respect to employees of any employer  as  defined  in  section
  twenty-seven-a  of  this chapter, is in knowing violation of a provision
  of a collective bargaining agreement  concerning  ethics,  conflicts  of

  interest,  potential  conflicts  of interest, or the proper discharge of
  official duties;
    d.  with  respect  to  employees of any employer as defined in section
  twenty-seven-a  of  this  chapter  who  are  not  subject   to   section
  seventy-three  or seventy-four of the public officers law, is in knowing
  violation of article eighteen of the general municipal law or any  local
  law,  administrative  code  provision,  charter  provision  or  rule  or
  directive of the mayor or any agency head of a city having a  population
  of  one  million  or  more,  where  such  law,  code  provision, charter
  provision, rule or directive concerns  ethics,  conflicts  of  interest,
  potential  conflicts  of  interest,  or the proper discharge of official
  duties and otherwise covers such employees; and
    e. with respect to employees other  than  those  of  any  employer  as
  defined in section twenty-seven-a of this chapter, violates a collective
  bargaining   agreement   or   a  certified  or  licensed  professional's
  contractual obligation to devote his or her entire  compensated  working
  hours to a single employer, provided however that the provisions of this
  paragraph  shall  apply  only  to professionals whose compensation is at
  least fifty thousand dollars for the year  nineteen  hundred  ninety-two
  and  in  subsequent  years  is an equivalent amount adjusted by the same
  percentage as the annual increase or  decrease  in  the  consumer  price
  index.
    4.  Notwithstanding  the  provisions  of  subdivision  three  of  this
  section, an employer shall not be in violation of this section where the
  employer  takes  action  based  on  the  belief  either  that:  (i)  the
  employer's  actions  were  required by statute, regulation, ordinance or
  other governmental mandate, (ii) the employer's actions were permissible
  pursuant to  an  established  substance  abuse  or  alcohol  program  or
  workplace   policy,   professional  contract  or  collective  bargaining
  agreement, or (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.
    6. Nothing in this section shall prohibit an organization or  employer
  from offering, imposing or having in effect a health, disability or life
  insurance  policy that makes distinctions between employees for the type
  of  coverage  or  the  price  of  coverage  based  upon  the  employees'
  recreational  activities  or  use  of consumable products, provided that
  differential premium rates charged employees reflect a differential cost
  to the employer and that employers provide employees  with  a  statement
  delineating  the  differential  rates  used  by  the  carriers providing
  insurance for the employer, and provided further that such  distinctions
  in  type  or price of coverage shall not be utilized to expand, limit or
  curtail the rights or liabilities of any party with regard  to  a  civil
  cause of action.
    7.  a.  Where a violation of this section is alleged to have occurred,
  the attorney general may apply in the name of the people of the state of
  New York for  an  order  enjoining  or  restraining  the  commission  or
  continuance  of  the  alleged unlawful acts. In any such proceeding, the
  court may impose a civil penalty in the amount of three hundred  dollars
  for  the  first  violation  and five hundred dollars for each subsequent
  violation.

    b. In addition to any other penalties or actions otherwise  applicable
  pursuant  to  this chapter, where a violation of this section is alleged
  to have occurred, an aggrieved individual may  commence  an  action  for
  equitable relief and damages.
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Last modified: February 15, 2014