January 26, 2026

Can Employers Act Based on Employees’ Off-Duty Conduct?

New York State’s highest court was recently asked to interpret New York State law protecting employees’ off-duty conduct. Instead, the Court ruled based on a longstanding principle not to interfere with employment decisions by religious organizations regarding employees whose core job functions are religious.

What Happened?

Westchester Reform Temple, a Jewish synagogue, fired teacher Jessie Sander after she co-authored a blog post criticizing Israel and Zionism. The teacher sued, citing New York State law that protects employees from being punished for legal recreational activities conducted on their own time.  She argued that blogging is a protected off-duty activity.

The Temple responded that the law does not protect blogging, that it does not protect conduct that materially conflicts with the Temple’s interests, and that the Temple may choose who teaches religion to its students.

What Did the Court Decide?

The state’s highest court ruled in favor of the employer. Importantly, the Court did not decide whether blogging or public speech counts as a protected recreational activity under the cited New York law. That question remains open. Instead, the Court focused on something else: the employee’s role.

The Ministerial Exception 

Courts have long held that the U.S. Constitution’s guarantee of religious freedom means they cannot interfere with employment decisions made by religious organizations about who teaches or spreads their faith. This is called the “ministerial exception” to the federal discrimination laws. The U.S. Supreme Court says the exception applies to any employee, such as teachers, whose job responsibilities include furthering the employer’s religious mission.

The Court looked at the teacher’s job offer and found that her work included:

• Teaching Jewish religious texts
• Leading religious programs
• Helping students develop a Jewish identity

The Court concluded that the teacher’s job was religious at its core and, therefore, the Temple had the right to decide whether she fit its mission, without a court second-guessing that decision.

Why This Matters for Employers

This case highlights a few important points:

• Not all off-duty conduct is protected, even if it happens on personal time
• Religious employers have broad discretion to make employment decisions about employees who perform religious roles
• Written job descriptions matter

Takeaways

Employers should:

• Write down and clearly define job responsibilities, especially when roles involve mission-driven work
• Know that New York’s off-duty conduct law has important limits

Employees should:

• Understand that off-duty conduct can sometimes create legal risk

Book Law assists employers in drafting and updating their policies to comply with federal and state laws. If you need policies or have questions about policies and compliance, please reach out to Chaim Book at cbook@booklawllp.com, Sheryl Galler at sgaller@booklawllp.com, Rebecca Nathanson at rnathanson@booklawllp.com, or Andrew Heighington at aheighington@booklawllp.com.