New York Appellate Court Rejects Challenge to “No-Dating” Policy

As reported in the October, 1992 issue of this Newsletter, an amendment to the New York Labor Law, which took effect on January 1, 1993, makes it unlawful for New York employers to take adverse employment actions against employees or applicants for employment on the basis of their legal, off-duty conduct. This provision, commonly referred to as the “off-duty conduct law,” grew out of efforts by the tobacco lobby to prevent employers from discriminating against employees who smoke. The final version of the law, however, went far beyond merely protecting smokers. The statute broadly defines a variety of legal activities that, if engaged in on an employee’s own time and without the use of company property or equipment, may not form the basis for adverse employment decisions. One of the categories of protected employee activity under this law is “legal recreational activity.”

In the first appellate decision on this issue, a New York court recently ruled that the off-duty conduct law does not apply to a “fraternization” policy adopted by Wal-Mart Stores, which prohibited a “dating relationship” between a married employee and another employee. State of New York v. Wal Mart Stores, Inc., 1995 N.Y. App. Div. LEXIS 17 (January 5, 1995). The specific issue in this case was whether “dating” constitutes protected “recreational activity” within the meaning of the law. The court ruled that it did not, and that Wal-Mart’s policy was therefore lawful.

The court began its analysis by considering the definition of “recreational activity” contained in the statute itself: “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.” The court reasoned that “dating” is characterized by “romance, either pursued or realized,” and that this essential element – amorous interest – clearly distinguished dating from any “recreational activity.” The court also considered the legislative history of the off-duty conduct law and found that the intent of the legislature was to “limit the statutory protection to certain clearly defined categories of leisure-time activities.”

Finally, the court rejected the notion that, if dating was excluded from the reach of the statute, employers would infringe upon the right of employees to engage in protected off-hours pursuits by “wrongfully characterizing dispassionate recreational activity as dating.” Rather, the court reasoned, the burden would be on an employer who sought to prohibit dating or to take action against an employee for violating a no-dating policy, to prove the employees’ “mutual romantic interest.”

If affirmed on appeal to the State’s highest court, the decision in the Wal-Mart case will resolve a major concern employers have faced since the enactment of the off-duty conduct law. Although the Wal-Mart “fraternization” policy is a relatively unusual one, many employers have anti-nepotism policies, which prohibit two employees married or otherwise related to each other from working for the employer or working directly with one another. Until now, there has been a concern that such policies would no longer be valid under the off-duty conduct law. Under the reasoning in Wal-Mart, however, it is now clear that a “marital relationship,” like the dating relationship at issue in that case, would not be considered “recreational activity,” and that an anti-nepotism policy therefore would not run afoul of the statute.