Do "off-duty lawful conduct" laws actually do anything?

November 3, 2023 10:04 PM

There have been some recent firings of employees for support of one side or the other in recent conflicts and some less recent ones for saying stupid/racist/sexist/homophobic things or acting an ass, but not unlawfully. Some states have laws protecting off-duty lawful conduct. Do they have any teeth?

California has Labor Code sections 96(k) and 1101
New York has 201-D. Colorado, Louisiana, and North Dakota are also mentioned in employment lawyers' websites warning employers to tread carefully. (these kind of posts are all I find on this subject)

I've never heard of anyone fighting an employer using these laws. Maybe a letter from the employee's lawyer quietly gets better severance or a settlement, but no one seems to keep their job. Or do they?

posted by ASCII Costanza head to Work & Money (3 answers total)

Best answer: In Dach's case, as in most of these cases, the conduct falls outside the definition of "political activities" or similar that is incorporated into the labor regulation. "[X racial/ethnic/religious group] are murderers and thieves" might be taken to be a political statement in some common uses of the term, but it doesn't actually fit easily into, e.g., the NY definition. Really it's only cops who get to make the argument that it's unfair to fire or discipline them for being racist, etc., as hell.

In the current situation, unfortunately, there are some well-funded and aggressive groups who choose to equate any criticism of Israel's policies or actions with anti-Semitism (*), and this makes the situation murkier for an employer being pressured to fire the employee. If I say, "Regardless of the horrific terrorist actions carried out by Hamas, I really don't think Israel should be violating the Geneva Convention by bombing ambulances in Gaza," am I expressing a political opinion [protected under a few states' laws] or just being anti-Semitic [generally not]? There are some very loud groups (who I don't think actually represent the majority sentiment) who would make the latter argument to an employer.

(*) Obviously some critics of Israel are, in fact, anti-Semitic, and some more naive people may repeat forms of critique with questionable genealogies. Don't @ me.
posted by praemunire at 10:34 PM on November 3, 2023 [8 favorites]

It is too early to tell whether any of these laws can be applied against adverse employment decisions for pro-Palestinian political speech/acts. There will be a lot of hesitation to deny employers the right to fire people for what the employer regards as hate speech.
posted by MattD at 10:58 AM on November 4, 2023

I've seen this sort of law used to determine whether and when a person can get unemployment benefits after being fired. But it didn't affect their ability to keep the job.
posted by pril at 8:22 AM on November 6, 2023 [1 favorite]