Early this month, the federal district court for the Southern District of New York ruled that a New York City law requiring food service industry employers to provide a payroll deduction system for their employees to make donations to non-profit organizations did not violate the First Amendment rights of such employers.

New York City’s law became effective in late 2017.  Fast food establishments are required to create and maintain deduction systems.  Upon request from an employee, the establishment must deduct a donation to a non-profit organization from the employee’s pay check and remit it to the designated organization.  Non-profit organizations that receive funds through the system are required to reimburse employers for the cost of maintaining the deduction system, if requested by the employers.

After finding that the trade industry association bringing the claim in question had standing to challenge the law, the court found that it did not violate the First Amendment rights of employers or employees.  The plaintiffs principally challenged the law as one compelling speech, arguing that the law requires employers to support non-profit organizations and to repeat employees’ messages.  But the court held that the conduct in question—sending a check to an employee’s designated non-profit organization—was not speech.  Moreover, even if it were speech, the court found that the mere act of sending money to an employee’s designated non-profit recipient cannot be considered the speech of the employer at all, and therefore is not compelled speech.  The court found that the law in question did not put employers at such risk that they would not speak at all—in contrast, the law simply required them to perform a ministerial act of dealing with payroll deductions.

The court also rejected the trade association’s freedom of association and National Labor Relations Act claims.

Restaurant Law Ctr. v. City of New York, No. 17 Civ. 9128 (PGG), 2019 WL 464822 (S.D.N.Y. Feb. 6, 2019).

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.