Recently, ESPN suspended reporter Britt McHenry for a week, after a video of McHenry berating a tow lot employee went viral. In the video, McHenry is seen swearing at and belittling the employee. We can assume that as a television personality, McHenry had a written employment contract with ESPN. Such contracts often allow the employer to discipline or terminate employees for conduct that would reflect poorly on, or hurt the reputation of, the employer.
But without such a contract provision, would ESPN be within its rights to discipline McHenry? Perhaps not, under New York Labor Law Section 201-d. That statute prohibits discriminating or taking adverse employment action against employees for engaging, among other things, in legal recreational activities outside of work hours. Arguably, McHenry's conduct, while embarrassing and reprehensible, was legal and not during work hours and thus, without a written contract, not something for which she could be disciplined or terminated.