2023 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;
d. "Political matters" shall mean matters relating  to  elections  for
political  office,  political  parties,  legislation, regulation and the
decision to join or support any political  party  or  political,  civic,
community, fraternal or labor organization;
e.  "Religious  matters"  shall  mean  matters  relating  to religious
affiliation and practice  and  the  decision  to  join  or  support  any
religious organization or association.
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;
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; or
e.  an  individual's  refusal  to:  (i)  attend  an employer-sponsored
meeting with the employer or its agent, representative or designee,  the
primary  purpose  of  which  is  to  communicate  the employer's opinion
concerning religious or political matters; or (ii) listen to  speech  or
view  communications, the primary purpose of which is to communicate the
employer's opinion concerning religious or political matters.
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.
8.  Nothing  in  this  section  shall prohibit: (i) an employer or its
agent, representative or designee from communicating  to  its  employees
any information that the employer is required by law to communicate, but
only  to  the  extent of such legal requirement; (ii) an employer or its
agent, representative or designee from communicating  to  its  employees
any  information  that  is necessary for such employees to perform their
job duties; (iii) an institution of  higher  education,  or  any  agent,
representative  or  designee  of  such institution, from meeting with or
participating in any communications with its employees that are part  of
coursework,  any  symposia  or  an academic program at such institution;
(iv) casual conversations between employees or between an  employee  and
an   agent,   representative   or  designee  of  an  employer,  provided
participation  in  such  conversations  is  not  required;  or   (v)   a
requirement   limited  to  the  employer's  managerial  and  supervisory
employees.
9. The provisions of this section  shall  not  apply  to  a  religious
corporation,  entity,  association,  educational  institution or society
that is exempt from the requirements of Title VII of  the  Civil  Rights
Act  of  1964  pursuant  to  42 USC 2000e-1(a) with respect to speech on
religious matters to employees  who  perform  work  connected  with  the
activities   undertaken   by   such   religious   corporation,   entity,
association, educational institution or society.
10. Every employer shall  post  a  sign  in  every  workplace  at  the
location or locations where notices to employees are normally posted, to
inform employees of their rights pursuant to this section.