I just realized I missed something about the policy in Nassau County, New York that assistant District Attorneys "are not permitted to apply for a handgun permit nor own or possess a handgun while employed by the Nassau County District Attorney."
It turns out that New York Labor Law § 201-d provides, in relevant part,
[(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; ...
d. with respect to employees of [certain government employees], is in knowing violation of article eighteen of the general municipal law or any local law, administrative code provision, charter provision or rule or directive of the mayor or any agency head of a city having a population of one million or more, 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 ....
4. Notwithstanding the provisions of subdivision three of this section, an employer shall not be in violation of this section where the employer takes action based on the belief either that: (i) the employer's actions were required by statute, regulation, ordinance or other governmental mandate, (ii) the employer's actions were permissible pursuant to an established substance abuse or alcohol program or workplace policy, professional contract or collective bargaining agreement, or (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....
It's hard for me to see how any of the exceptions apply here, so the policy strikes me as clearly improper as to recreational possession of handguns, for instance at a target-shooting range. The employer may not punish an employee for violating the policy in such a situation.
I'd say the same would be true as to applying for a handgun permit in order to keep the handgun for recreational activities." That might be a tougher call, given that applying for the permit is not itself a recreational activity. But since applying for the permit may be necessary to own the tools needed to engage in the recreational activity -- if the applicant is motivated by recreational purposes -- I would think that it would be covered. I take it, for instance, that an employer can no more punish someone (given New York Labor Law § 201-d) for applying for a hunting permit, or for buying a snowmobile, than it could for actually hunting or snowmobiling. Or is my analysis mistaken here?
Related Posts (on one page):
- Does Nassau County D.A.'s No-Handgun-Possession Policy Violate New York Law?
- Nassau County (N.Y.) Assistant DAs Barred from Possessing Handguns:
In general, is it legal for an employer (I suppose its different for federal government, state government, and private employees) to deny its employees constitutional rights while off duty as a condition of employment?
examples: denial of the right to participate in political rallies, denial of the right to proselytize (ex: Mormon missionaries, etc), right to own a gun (in this case) and so on?
sk
It's hard for me to imagine how someone could engage in any lawful activity with a handgun while not possessing the handgun. Maybe possession here means something different than it does in other statutes (like drug possession)?
Sk: Generally speaking, a private employer may fire an employee for any reason or no reason at all, except for the ones specifically barred by statute (e.g., race, religion, sex, and the like) or by one of the rare common law doctrines that supplements the statutes in a few states. This means that a private employer may fire the employee for the employee's off-duty speech, off-duty sexual activity (unless the state law bans sexual orientation discrimination, and the firing is based on the sex of the parties involved in the sexual activity), off-duty gun use, or whatever else. About a dozen or so states have statutes that bar private employers from firing employees based on off-duty speech, off-duty recreational activity, or whatever else.
Joe Sixpack: You and me both.
This is legal recreational activity and great fun too.
Under that reasoning Nassau county couldn't stop their employees from bowling, yet they could forbid employees from possessing a bowling ball under their terms of employment. Which is not a bad result, I can't think of any legitmate use for a bowling ball in a private residence.
I know the law's as you describe but to your knowledge, has anyone ever claimed that as a result of their having to conform to their employer's wishes 24/7/365, they were employed 24/7/365 and deserved to be paid on that basis?
Assistant DA's are paid on a salary, not hourly.
In California, we have a law that generally prohibits employers from firing people for off-duty, lawful activities that bear no relevance to the job. But I think we are almost alone in that respect; certainly the common law rule is that at least for at-will employment (which comprises most jobs), a person could be fired for what they did off the job.
There is a rational reason for the DA's policy, and that is to reduce the chances that they would be charged with hypocrisy in enforcing gun laws. The Nassau DA like most jurisdictions in the area are very stringent about enforcing gun laws, even when the use of a gun was justified and prevents a serious crime like armed robbery or murder. If an assistant DA lives in a jurisdiction with looser gun laws, and happens to use their gun in the very same manner as someone they charge in Nassau county, it could be embarrassing to the DA.
The other possibility is that because handgun permits are discretionary issue in Nassau, the DA wants to eliminate the possibility of assistant DA's getting preferential treatment. Which is not unlikely.
But there is a solution, apply the constitution and let all law abiding citizens have the guns they are entitled to, and all of those issues go away.
Or am I missing some other statute, or some caselaw contrary to what I noted above?
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