The underlying story is linked to here; but what struck me is that New York -- the place where Human Rights Watch is headquartered, and where I take it Marc Garlasco is working -- has a statute that generally prohibits employers from discriminating against employees based on their lawful recreational activities:
[1.]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; ...
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: ...
c. an individual's legal recreational activities outside work hours, off of the employer's premises and without use of the employer's equipment or other property; ....
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; ....
4. ... [A]n employer shall not be in violation of this section where the employer takes action based on the belief ... that: ... (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.
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....
So while Garlasco's collecting Nazi memorabilia might well cause serious public relations problems for Human Rights Watch, the organization may not suspend him (suspension surely qualifies as discrimination in terms, conditions, and privileges of employment) based on such collecting -- assuming Garlasco "received no compensation" for the collecting -- unless one of the exceptions applies. What are the possible exceptions?
Provision 5: Maybe Garlasco's contract qualifies as a "professional service contract" based on "the unique nature of [his] services," and the contract specifically provides that the employer may limit off-duty activities; I'm not sure, though, whether his services are "unique" enough that this would apply even if the contract has such a clause. If anyone knows more about this provision, or about the normal New York law or employment law definitions of "professional service contract" or "unique nature," I'd love to hear about it.
Provision 4.iii: I doubt that one would conclude that Garlasco's collecting would reasonably qualify as being "incompetency or misconduct," though of course the terms are quite vague, and one could argue that any employee action that could lead to the public's devaluing the employee's work for his employer is "incompeten[t]."
Provision 3.a: One could argue that Garlasco's conduct "creates a material conflict of interest related to the employer's ... business interest." In my experience, "conflict of interest" generally refers to some way in which an employee's activity potentially undermines his loyalty to the employer. But one case, Berg v. German National Tourist Office, 248 A.D.2d 297, 297 (1998), seemed to read the provision broadly enough to also cover actions that undermine the employee's utility to the employer, by exposing the employer to hostility stemming from public hostility to the employee's views. In Berg, the court found that the German National Tourist Office acted permissibly in firing an employee for becoming publicly known as the translator of some Holocaust revisionist articles. But is Berg, which is a single decision of the New York intermediate appellate court, not the state high court, correct? And would it also apply to the less incendiary -- though obviously still unpopular -- behavior of collecting Nazi memorabilia?
The First Amendment: Finally, it's possible that Human Rights Watch's First Amendment rights -- here, the rights to choose who writes and comments on its behalf -- might trump the New York statute in some situations. Compare Nelson v. McClatchy Newspapers, Inc., 936 P.2d 1123, 1127 (Wash. 1997) (holding, by a 5-4 vote, that the First Amendment trumped such a statute when a newspaper demands that its reporters not engage in politics; that specific scenario is exempted from the New York statute, but the Washington court's logic may apply to other situations as well) with Ali v. L.A. Focus Publication, 112 Cal. App. 4th 1477 (2003) (rejecting the claim that a newspaper "has the unfettered right to terminate an employee for any [outside-the-newspaper] speech or conduct that is inconsistent with the newspaper's editorial policies").
I'm inclined to say that employers should indeed have broad rights in such situations, and in most states they would. It's also possible that under Berg, Human Rights Watch may indeed fire employees for doing anything that might make them or Human Rights Watch seem less credible. Still, the matter is not as clear in New York as it would be in most states, because of the statute I quoted above.
All Related Posts (on one page) | Some Related Posts:
- Is It Legal for Human Rights Watch to Suspend an Analyst for Collecting Nazi Paraphernelia?
- HRW's Garlasco Suspended:
- HRW's Garlasco Responds, Making Matters Worse:...
- Human Rights Watch and the Presumption of Good Faith:
- Jeffrey Goldberg on Human Rights Watch:
- Human Rights Watch Goes to Saudi Arabia, UPDATE: