NY High Court to Tackle Employees’ Protections for Online Posts

New York’s highest court has a chance to clarify what kind of social media activity is protected under the state’s labor law, but employment lawyers disagree over how broad the judges will go.

The case of Jessie Sander, a teacher fired from Westchester Reform Temple for a blog post on Israel and Palestine, comes before the Court of Appeals as employees throughout the country face disciplinary action or termination for expressing political views on social media over hot-button political issues, such as the death of Charlie Kirk.

Sander says she was illegally fired from the synagogue for a blog post she and a friend published criticizing Israel for its May 2021 airstrikes on buildings in Gaza and warning that conflating Zionism and Judaism was dangerous. The post went online on May 20—a week after she was offered the job but before she started.

There could be “very big implications for the workplace in New York” if the Court of Appeals finds employers have “unlimited discretion” to discipline or fire someone based on the content of their blog, said David Marshall, director of the Center for Labor and Employment Law at St. John’s University.

The court could also opt to rule that blogging is protected and move the case forward at the lower courts without any broader implications. That would be “consistent with the law that already exists” that says a case shouldn’t be dismissed on the pleadings if there’s a legally recognized claim, said Laurie Morrison, president of the New York chapter of the National Employment Lawyers Association.

Posting vs. Content

The trial court and the appellate concluded Sander was fired for the content of the post, which they said isn’t protected under the law, rather than answering whether blogging is a protected recreational activity under New York Labor Law.

The law prohibits employers from discriminating against and firing employees who engage in recreational activities, including hobbies, reading, and watching TV and movies. Sander argues blogging is a hobby and, like reading or watching TV, is an “expressive recreational pursuit.”

The lower courts took the easy way out, said Joseph Cartafalsa, an Ogletree Deakins shareholder who represents employers. He thinks the high court will focus on the content question rather than tackle whether whether blogging is a protected recreational activity.

Geoffrey Mort, of counsel at Kraus & Zuchlewski LLP, said he hopes the court issues a broader ruling that addresses whether the content of any blog or social media post is something employers can consider, or if it’s also the act of blogging or posting something online.

“I think that’s a somewhat larger question that could use clarification,” Mort added.

Ministerial Exception

If the court finds Sander did engage in protected activity, then it likely will have to consider whether the US Constitution exempts the synagogue from being held liable for discrimination, according to Marshall. The ministerial exception doctrine prevents states from interfering with employment relationships between a religious organization and key employees. Both sides dispute whether Sander, a full-time educator, was in a ministerial role.

The synagogue’s brief says her job was “replete with religious duties,” while Sander says her job offer letter confirms the position was secular rather than religious.

Marshall worries the court “acted hastily” in granting leave to appeal the case. The question of what online activity is protected under the law is an issue that needs to be addressed, but this particular case suffers from a lack of analysis on the constitutional questions from the lower courts, he said.

Mort thinks judges will keep their analysis within the confines of interpreting recreational and possibly political activity under New York law. The court could simply say the appellate court didn’t address the religious exemptions and “because of that, it’s a different analysis.”

Under the First Amendment, organizations need to be able to show that the speech at issue goes against the tenets of that institution, and that those tenets aren’t being arbitrarily applied, Morrison said.

She warned against “bright-line guidelines” for employers to determine what speech is allowed.

“Our democracy is built on dissent. We have to keep our eye on the bigger picture with this case and with other cases,” she said.

Sander is represented by Bob Herbst of Manhattan. Westchester Reform Temple is represented by Yankwitt LLP.

The case is Sander v. Westchester Reform Temple, N.Y., No. APL-2024-00174, oral argument scheduled 11/18/25.