New York Court Reviews Whether Blogging Is a Protected Off-Duty Activity

The New York state Court of Appeals is examining whether the act of blogging could qualify as a protected off-duty activity under New York Labor Law § 201-d, a law that prevents employers from discriminating against employees for engaging in certain legal activities outside of work. The case has garnered significant attention.  

The case centers around an educator who was fired for the contents of a blog she co-authored. The educator alleged she was fired in violation of New York’s labor laws. During oral arguments, the judges concentrated on where to draw the line between protected recreational activities and unprotected conduct. They posed hypotheticals involving reading books, rooting for sports teams, and other personal pursuits to test how broadly the statute should be interpreted. Their questions reflected the challenge of defining what counts as a recreational activity in a digital age when personal expression often occurs online.

Attorneys for the former employer emphasized that the termination was not based on the blogger’s participation in the activity itself but on the specific viewpoints expressed. Lower courts accepted this reasoning, finding that the content of the posts — not the act of blogging —led to her dismissal and that the activity did not fall under the protections of § 201-d.

The upcoming decision is significant. A ruling that blogging is a protected recreational activity could expand workplace protections for online expression across New York. Conversely, if the court maintains that only the content matters in this case, employees may continue to face consequences for what they publish publicly, even when done on their own time.

As digital communication becomes ever more intertwined with daily life, the court’s decision will be an important one for both workers and employers to watch.

SHRM has submitted an amicus brief urging the U.S. Supreme Court to review Richards v. Eli Lilly & Co., a case that could reshape how wage and hour claims proceed in collective actions. In its decision, the Seven7th U.S. Circuit Court of Appeals created a new “material factual dispute” standard, rejecting the long-standing Lusardi “modest factual showing” test. The 7Seventh Circuit acknowledged that its decision created a significant split among federal appeals courts, making Supreme Court review imperative.