State Guidance Regarding Time Off to Vote

State Guidance Regarding Time Off to Vote

 

KEEPING YOU INFORMED…

We are writing to advise you that the New York State Board of Elections recently published “frequently asked questions” regarding Election Law Section 3-110 (“the Law”), which now requires all employers to provide employees with up to three hours of paid time off to vote regardless of whether the employee has sufficient time to vote outside of the work day. The key new information from this guidance document is summarized below.

      • The Law only applies to primary, general and special federal, State, county, city, town and village elections. The FAQ provides that the Law does not apply to early voting periods.[1]
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      • The FAQ emphasizes that the Law does not automatically guarantee an employee three hours of paid time off to vote. An employee is only entitled to as much time as the employee needs in order to vote (up to three hours). An employer may require proof regarding how much time the employee needs to vote and the location of the employee’s polling place.
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      • In response to the question of whether employers are allowed to ask for proof of registration and/or proof that the employee actually voted during the employee’s time off to vote, the FAQ merely states that the Law is “silent” with respect to whether an employer can request this proof. It further states that “Election inspectors are tasked with many duties in relation to the administration of elections and providing proof that a person voted is not one of them.”
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The State has issued a Policy Bulletin regarding the application of the Law to certain employees holding positions in the classified service of the Executive Branch of State service  (i.e., the Policy Bulletin does not apply to private sector employees or those employed by local governments, municipalities, public benefit corporations, school districts or other non-State public sector employers). The Policy Bulletin provides that the State may not require from a State employee “proof of voter registration or proof that an employee actually voted.”

Contrary to the Policy Bulletin’s interpretation of the Law, the Law itself does not prohibit an employer from requiring an employee to provide proof or to certify that the employee is eligible to vote in an election or that the employee actually voted during the allotted time off to vote. It is, therefore, our recommendation that private and non-State public sector employers should still require this proof or certification. We caution, however, that the Policy Bulletin’s prohibition on requiring proof may be expanded by a subsequent law, regulation or court decision to private and non-State public sector employers.

As we advised in our May 24, 2019 client memorandum, issues including, but not limited to, what constitutes sufficient proof of whether an employee is eligible to vote or actually voted and any forms or certificates that you may require employees to complete with respect to these issues may need to be negotiated with your unions.

      • The FAQ acknowledges that the Law’s requirement that employees request time off to vote at least two working days prior to the election in which they intend to vote is silent regarding how “working day” should be defined. The FAQ confirms the recommendation set forth in our May 24, 2019 client memorandum that “working day” should be interpreted as any day that the employer is operating and/or open for business.
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      • With respect to employees with flexible schedules, the FAQ states that, if an employee has a flexible schedule, and is not scheduled to work on an election day, the employee would not be entitled to up to three hours of paid time off to vote. If the employee (including a part-timer) is scheduled to work on an election day, however, the employee would be entitled to paid time off to vote.
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      • The FAQ concludes that an employer may not charge an employee’s paid time off to vote to accrued leave. Any time taken beyond three hours, however, may be charged to accrued leave in accordance with the leave provisions applicable to the employee.

If you have any questions regarding the State guidance or Law, please contact Lauren Schnitzer or one of our other attorneys by calling 631-694-2300.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP 2019

[1] In January 2019, New York adopted a new early voting law that will first apply to the general election in November 2019, allowing voting at designated times prior to a general, primary, run-off primary or special election, except for a Village election.