New Protected Activity ' Displaying the Flag

The realm of protected activity has been expanded by the New York Legislature to include the display of the American flag by an employee on that employee's person or in his/her workstation. (Labor Law ' 215-c). An employer who punishes an employee for displaying the Stars and Stripes is subject to a civil fine up to $2,000 imposed by the Commissioner of Labor. In addition, a victim of such discrimination may bring a civil action within 2 years of the wrongful act, and may be awarded 'all appropriate relief, including rehiring or reinstatement of employee to his former position with restoration of seniority, payment of lost compensation, damages, and reasonable attorneys' fees.' An employee is not entitled to the protection of '215-c, however, where the display of the flag substantially or materially interferes with the employee's job duties.

Section 215-c, while reflecting the patriotic fervor that followed the 9/11 attacks, raises some curious possibilities. For example, if second Persian Gulf war begins, will the purposeful pronounced display of an American flag in an office populated by employees of Middle Eastern descent who oppose the US war efforts serve as a basis for a national origin harassment claim? If so, would '215-c present a defense to such claims? Is there a First Amendment challenge to the new law lurking in the shadows? Time will tell.

The realm of protected activity has been expanded by the New York Legislature to include the display of the American flag by an employee on that employee's person or in his/her workstation. (Labor Law ' 215-c). An employer who punishes an employee for displaying the Stars and Stripes is subject to a civil fine up to $2,000 imposed by the Commissioner of Labor. In addition, a victim of such discrimination may bring a civil action within 2 years of the wrongful act, and may be awarded 'all appropriate relief, including rehiring or reinstatement of employee to his former position with restoration of seniority, payment of lost compensation, damages, and reasonable attorneys' fees.' An employee is not entitled to the protection of '215-c, however, where the display of the flag substantially or materially interferes with the employee's job duties.

Section 215-c, while reflecting the patriotic fervor that followed the 9/11 attacks, raises some curious possibilities. For example, if second Persian Gulf war begins, will the purposeful pronounced display of an American flag in an office populated by employees of Middle Eastern descent who oppose the US war efforts serve as a basis for a national origin harassment claim? If so, would '215-c present a defense to such claims? Is there a First Amendment challenge to the new law lurking in the shadows? Time will tell.