Second Circuit Reaffirms New York Labor Law’s Protections against Retaliation for Political (and Other) Activities Outside of Work

The Second Circuit Court of Appeals recently revived a lawsuit alleging the bank unlawfully fired an employee for engaging in political activities outside of work, thereby reaffirming the validity of and legitimate protections provided by a rarely invoked provision of the New York Labor Law (“NYLL”).  

In Truitt v. Salisbury Bank and Trust Company, et al., the plaintiff claimed that was fired because he ran for a seat in the New York State Assembly.  As alleged in the lawsuit, this violated NYLL § 201-d, which prohibits discrimination against employees for engaging in political activities outside of work, including running for office, as well fundraising or campaigning for a candidate.  Notably, NYLL § 201-d also prohibits discrimination for engaging in recreational activities (defined as “any lawful, leisure-time activity for which the employee receives no compensation” and which is generally carried out for recreational purposes)—and expressly states that this includes cannabis consumption outside of working hours.

The Second Circuit’s decision reversing summary judgment serves and confirms that—while not traditionally considered protected activities under the law—lawful out-of-office activities such as political campaigning do not provide a lawful basis for termination in New York, even if the employer disagrees with them.

The Second Circuit’s decision also provides an interesting case study in the constructive discharge doctrine, which states, generally, that an employee may be considered to have suffered an adverse action even where he or she resigns if the working conditions were intolerable.  In Truitt, Salisbury Bank and Trust Company told Mr. Truitt that he could no longer work there if he continued his bid for public office.  Forced to choose between his job and his campaign, Mr. Truitt resigned, but contended that he was, in fact, constructively discharged.  As the Honorable Denny Chin succinctly stated in the opinion: “A reasonable jury could find that the bank discriminated against Truitt when it forced upon him an impermissible choice between keeping his job and engaging in statutorily protected political activity.”  In reversing summary judgment, the Second Circuit endorsed the viability of Mr. Truitt’s theory, paving the way for him to make his case to a jury.  

The Truitt decision serves as an important reminder that the bounds of employment law are not as narrow as they sometimes seem.  For employees in New York, engaging in political or any other lawful activities outside of work is protected—even if the employer doesn’t like them—and an employee’s resignation is not always a death knell for his or her discrimination or retaliation claim.