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Controversies surrounding the balance of employers' interests and employees' rights have intensified and taken various forms in recent years. How far an employer can go in restricting employees' personal behavior, recreational interests, political activities, or even appearance, has become a topic for discussion in the workplace, the media, and the courtroom. In response, several states have taken action to prohibit discrimination against workers based on personal behavior and lifestyle decisions.
This act, based on 1992 New York legislation, bars an employer or employment agency from discriminating against an employee on the basis of legal activities undertaken by that employee during non-working hours, away from the employer's premises, and without the use of the employer's equipment or resources. The act prohibits any employer or employment agency from refusing to hire, employ or license, or from discharging or otherwise discriminating against an individual -- in compensation, promotion, or the terms, conditions or privileges of employment -- because of an individual's political activities, use of consumable products, legal recreational activities or union membership.
In 1991, the state of Wisconsin enacted similar legislation (1991 Wisc.
(Title, enacting clause, etc.)
Section 1. [Short Title.] This act may be cited as the Act Prohibiting Discrimination Against Employees' Participation in Legal Activities During Non-Working Hours.
Section 2. [Definitions.] As used in this act:
(1) "Political activities" means
(i) running for public office
(ii) campaigning for a candidate for public office, or
(iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group.
(2) "Recreational activities" means any lawful, leisure-time activities, 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.
(3) "Work hours" means all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work. This definition shall not be referred to in determining hours worked for which an employee is entitled to compensation under any law including [insert citation for appropriate section of state code].
Section 3. [Applicability.] Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or for any employer or employment agency to discharge from employment or to otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of:
(1) an individual's political activities outside of working hours, off of the employer's premises and without use of the employer's equipment or other property, if such activities are legal, provided, however, that this paragraph shall not apply to persons whose employment is defined in [insert citation for appropriate section of state code], and provided further that this paragraph shall not apply to persons who would otherwise be prohibited from engaging in political activity pursuant to [insert citation for appropriate section of state code];
(2) an individual's legal use of consumable products prior to the beginning or after the conclusion of the employee's work hours, and off of the employer's premises and without use of the employer's equipment or other property;
(3) 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; or
(4) an individual's membership in a union or any exercise of rights granted under [insert citations for appropriate section of state code].
Section 4. [Exemptions.] The provisions of Section 3 of this act shall not be deemed to protect activity which:
(1) creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest;
(2) with respect to employees of a state agency as defined in [insert citation for appropriate section of state code], is in knowing violation of [insert citation for section of state code regarding public officers];
(3) with respect to employees of a state agency as defined in [insert citation for appropriate section of state code], is in knowing violation of a provision of a collective bargaining agreement concerning ethics, conflicts of interest, potential conflicts of interest, or the proper discharge of official duties;
(4) with respect to employees of any employer as defined in [insert citation for appropriate section of state code] who are not subject to [insert citation for section of state code regarding public officers], is in knowing violation of [insert citation for appropriate section of general municipal code] or any local law, administrative code provision, charter provision or rule or directive of the [mayor] or any [municipal agency head], where such law, code provision, charter provision, rule or directive concerns ethics, conflicts of interest, potential conflicts of interest, or the proper discharge of official duties and otherwise covers such employees; and
(5) with respect to employees other than those of any employer as defined in [insert citation for appropriate section of state code], violates a collective bargaining agreement or a certified or licensed professional's contractual obligation to devote his or her entire compensated working hours to a single employer, provided however that the provisions of this paragraph shall apply only to professionals whose compensation is at least [insert dollar amount] for the year [insert year] and in subsequent years is an equivalent amount adjusted by the same percentage as the annual increase or decrease in the consumer price index.
Section 5. Notwithstanding the provisions of Section 4 of this act, an employer shall not be in violation of this act where the employer takes action based on the belief either that
(1) the employer's actions were required by statute, regulation, ordinance or other governmental mandate,
(2) the employer's actions were permissible pursuant to an established substance abuse or alcohol program or policy, professional contract or collective bargaining agreement, or
(3) the individual's actions were deemed by an employer or previous employer to be illegal or to constitute habitually poor performance, incompetency or misconduct.
Section 6. [Professional Service Contract; Non-Applicability.] Nothing in this act 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 employers shall be permitted, as part of such professional service contract, to limit the off-duty activities which may be engaged in by such individual.
Section 7. [Differential Insurance Coverage.] Nothing in this act shall prohibit an organization or employer from offering, imposing or having in effect a health, disability or life insurance policy that makes distinctions between employees for the type of coverage based upon the employees' recreational activities or use of consumable products, provided that differential premium rates charged reflect a differential cost to the employer and that employers provide employees with a statement delineating the differential premium rates used by the carriers providing insurance for the employer, and provided further that such distinctions in type or price of coverage shall not be utilized to expand, limit or curtail the rights or liabilities of any party with regard to a civil cause of action.
Section 8. [Penalties.]
(a) Where a violation of this act is alleged to have occurred, the [state attorney general] may apply in the name of the people of the state of [state] for an order enjoining or restraining the commission or continuance of the alleged unlawful acts. In any such proceeding, the court may impose civil penalty in the amount of [insert dollar amount] for the first violation and [insert dollar amount] for each subsequent violation.
(b) In addition to any other penalties or action otherwise applicable, where a violation of this act is alleged to have occurred, an aggrieved individual may commence an action for equitable relief and damages.
Section 9. [Effective Date.] [Insert effective date.]
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