Considerations for NY Employers as Election Day Approaches
The November 8 midterm elections are quickly approaching. Now is the time for New York employers to take the necessary steps to ensure compliance with federal, state, and local law requirements that relate to voting rights and political activity. This is also the time to review your organization’s existing policies and practices. Below are some legal requirements New York businesses may want to consider in connection with voting leave for their employees.
While no federal laws require private employers to give their employees leave in order to vote, as of March 2022 employees of federal agencies are entitled to receive up to four hours of administrative leave to vote in federal, state, local, tribal, and territorial elections. There has also been momentum for nationwide laws to provide voting leave for workers with proposed federal legislation, Bill H.R. 7489, referred in April and currently in the House committee.
Despite the lack of federal legislation covering private businesses, New York is one of 29 states in addition to the District of Columbia that have enacted laws to ensure that employees have the right to take a certain amount of time off from work to vote. Of the states that require voting leave for employees, a majority (all but seven), including New York, provide for paid leave.
Section 3-110 of the New York Election Law mandates that employees who are registered to vote in New York are eligible to take up to two hours of paid time off to vote. The right is triggered only when an employee is deemed not to have sufficient time to vote during the work day (defined as four consecutive hours either from the opening of the polls to the beginning of their work shift, or four consecutive hours between the end of a work shift and the closing of the polls). The two hours of paid leave can be taken at the beginning or end of an employee’s work schedule, as designated by the employer. This paid leave is for any election in New York, including general elections, special elections called by the governor, primary elections, and town and village elections.
Advanced Notice of Leave
Most states with voting leave requirements mandate that employees request time off for voting leave in advance. New York is no different, requiring employees to notify employers of their intention to take paid voting leave at least two but no more than ten working days before Election Day. To avoid confusion, working days means any days that the employer is operating and open for business.
Section 3-110 of the New York Election Law also mandates that employers conspicuously post a notice for employees in the workplace where it can be seen as employees come and go, setting forth the provisions of the law. Notices must be posted at least 10 working days before each election and remain posted until the polls close on Election Day. To view more about employee voting rights, please click here.
Employee Political Activity
Employers should also be aware that for employees who participate in political activity, such as fundraising for candidates, volunteering as poll workers, or running for office, Section 201-D of the New York Labor Law offers protection against discrimination. Employers are prohibited from discriminating against employees who engage in political activities outside of working hours, off the employer’s premises, and without the use of the employer’s equipment or other property, if these activities are legal.
On June 20, 2022, Governor Kathy Hochul signed the John R. Lewis Voting Rights Act of New York into law, which provides protection against discrimination in voting by ensuring equal access, in particular to members of racial, ethnic, and language-minority groups. The law prohibits voter dilution; voter suppression; voter intimidation, deception, and obstruction, intentional or otherwise; and requires election-related language assistance beyond what is required by the federal Voting Rights Act. Additionally, the law requires certain political subdivisions to receive pre-clearance for potential violations of the voting rights legislation. There is also now a requirement that covered jurisdictions (those with a history of civil or voting rights violations) “preclear” any changes to certain important election-related laws and policies before these jurisdictions can implement them, to ensure they will not violate the voting rights of a protected class.
With midterm elections quickly approaching, New York employers should evaluate current workplace policies and procedures with special attention to voting leave guidelines. Employers should also take the time to consult with legal experts to ensure compliance with local, state and, federal laws. Companies should also consider how these laws relate to remote work employees, as greater flexibly may be needed to meet the requirements of other states.
The attorneys in our Labor and Employment Practice Group are available for consultation regarding employee voting rights. Click here or contact us at (914) 287-6161 to learn more about how our expertise can help your organization stay compliant.