Can I Be Fired for Something I Do Outside of the Workplace?

Getting Fired For Activities Outside of the Workplace

Today, with the widespread use of social media, it’s easy for anyone to know what anyone else is doing at any time. People are sharing more of their personal lives and in many ways, people have become less concerned about actions that might be perceived negatively.

But does this mean employers can terminate employees for what they are doing off-the-clock?

It depends.

Most states offer protection to employees who engage in legal activities off-the-clock. This means you cannot be terminated by your employer as long as what you are doing is legal.

New York lawmakers have taken protection for employees’ legal off-duty activities a step further and created section 201-d of the Labor Law. The original intention of the law was to prevent employers from taking punitive action against employees who smoke, but the protection goes much further and lists specific activities that, if done on an employee’s own time and without using of company property or equipment, cannot be used to make employment decisions.

Under the law, it is illegal for an employer to not hire or to fire you based on your protected activities. Protected activities include:

• Political activities
• Legal recreational activities
• Legal use of consumable products away from company property and not while working
• Membership in a union or exercising rights related to union activity

There are exceptions to the law. For instance, professional journalists and civil servants do not receive protection regarding political activity, which is prohibited by law in these industries.

Additionally, if an activity is found to be a conflict of interest and jeopardizes certain protected aspects of a business, the employee does not receive protection.

Getting Fired Because of a Failed Drug Test

One of the most highly debated topics when it comes to employees’ and privacy rights concerns drug testing.

Employers have the right to test employees for drug use and even if the use of the illegal drug occurred while the employee was not on company time, employers can take punitive action. However, there are only certain circumstances under which drug testing can occur, such as during the application process, when an employee’s duties are safety or security sensitive, or when an employee behaved in a manner that gave rise to suspicion of on-the-job drug use.

It should also be noted, based on New York law, drug testing programs are required to differentiate between an employee’s legal and illegal drug use. Legal use of a drug is protected, but the law authorizes punitive action if an employee violates an employer’s established substance abuse program or policy. This means an employee could be disciplined for drinking alcohol or using a legal drug prior to reporting to work.

Getting Fired for Having a Second Job

Employers might have a right to terminate you if you are employed simultaneously for another employer, but it rarely occurs and your employer will need to show just cause for doing so.

For instance, working for a competitor or starting a business that competes with your primary employer can result in termination. Most employers also prohibit employers from using equipment or doing work for another employer on company time.

New York law protects only non-compensated leisure time activities, but many are still able to and need to work more than one job simultaneously. If you are concerned about how getting a second job might affect the job you currently have, it’s a good idea to speak to the human resources department about it.

Getting Fired for Breaking the Law

New York’s Human Rights Law addresses the criminal history of employees and offers greater protection than you might have elsewhere, but breaking the law while employed by your current employer can severely limit your protection.

The law provides protection only for previous convictions. A conviction that occurs during employment does not entitle you to the protection provided under the law.

For more information about the protections provided to employees under New York’s Human Rights Law, check out this information from the NY Department of Labor.

If you believe you have been wrongfully terminated or you are concerned something you’ve done off-the-clock could have a bearing on employment, we can help. Contact the New York Employment Lawyers Borrelli & Associates, P.L.L.C. to schedule a free consultation.