NY Lab L § 201-D (2021)
2021 New York Laws LAB - Labor Article 7 - General Provisions 201-D - Discrimination Against the Engagement in Certain Activities.

§  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,  including cannabis  in  accordance with state law, 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, 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; 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.   4-a. Notwithstanding the provisions of subdivision three  or  four  of this  section,  an  employer  shall  not be in violation of this section where the employer takes action related to the use of cannabis based  on the following:  (i)  the employer's actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;  (ii) the employee is impaired by the  use  of  cannabis,  meaning  the employee  manifests  specific  articulable  symptoms  while working that decrease or lessen the employee's performance of the duties or tasks  of the  employee's  job  position,  or  such  specific articulable symptoms interfere with an employer's obligation to provide a  safe  and  healthy work  place,  free  from  recognized  hazards,  as required by state and federal occupational safety and health law; or  (iii) the employer's actions would require such employer to commit any act that would cause the employer to be in violation of federal  law  or would result in the loss of a federal contract or federal funding.   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.