April 29, 2019 Paid Time Off to Vote
KEEPING YOU INFORMED…
We are writing to inform you of a recent amendment to the New York Election Law that was included in the State’s 2019-2020 Budget and is now in effect. Election Law Section 3-110 now requires employers to provide employees with up to three hours of paid time off to vote (the law does not specify whether an employer may charge this time to accrued leave). The time off is required regardless of whether the employee has time to vote outside of his or her working hours.
Prior to this change, employers were required to provide up to two hours of paid time off only when the employee did not have sufficient time to vote outside of the employee’s working hours (an employee was previously deemed to have sufficient time to vote if he or she had four consecutive hours between when the polls opened and the beginning of his or her work shift or between the end of his or her work shift and when the polls closed). As a result of this change, even if an employee’s shift starts several hours after the polls open or several hours before the polls close, the employee is still entitled to up to three hours of paid time off to vote.
The law requires an employee to provide the employer with at least two working days’ notice that he or she requires time off to vote (the law no longer prohibits an employee from providing this notice more than 10 working days before the election). The employee must be allowed time off to vote at the beginning or end of the employee’s work day, as the employer may designate, unless the employer and employee (or bargaining unit) have agreed otherwise.
The new time off provisions apply to federal, State, county, city, town and village elections (including general, special and primary elections) that are conducted in accordance with the Election Law and for which the employee is registered to vote. The provisions do not apply, for example, to school district or school district public library elections and budget
votes, which are governed by the Education Law (except for New York City community school district elections), or to fire district elections, which are governed by the Town Law. If you would like assistance determining whether an election is covered, please contact us.
The law’s posting requirement has not changed. Beginning at least 10 working days prior to an election, and through when the polls close, employers must conspicuously post a copy of Election Law Section 3-110 in the workplace where it can be seen as employees come or go. Because covered elections occur throughout the year, we recommend that employers ensure that the poster is posted year-round. A sample poster with the amended law is available at https://www.elections.ny.gov/NYSBOE/elections/AttentionEmployees.pdf.
The law now provides that an employee is entitled to paid time off only for as long as is needed to vote (for up to three hours). This amount of time is individual to each employee and may vary based upon the distance between the workplace and the employee’s polling place, the method of transportation (e.g., car, train), the time of day and other factors.
It is our opinion that employers may require employees to submit proof of their eligibility for time off, including how much time is needed. Generally, issues including, but not limited to, what constitutes sufficient proof of voter registration and polling place, must be negotiated in unionized workplaces. We recommend commencing that process now so that any agreed upon procedure can be implemented before the first covered election, which will likely be the primary election on June 25, 2019 (unless a covered special election is scheduled before the primaries).
It remains a misdemeanor for a person or corporation to prohibit an employee entitled to vote at an election the ability to vote in accordance with Section 3-110 or to subject the employee to a penalty or reduction of wages because the employee voted in accordance with that law.
The New York Board of Elections has advised us that it may issue guidance regarding the revised law. We will let you know if, and when, this guidance is published.
The amendments described in this memorandum may impact existing provisions in your collective bargaining agreements, employment agreements, policies and employee handbooks regarding time off to vote. Please note that the law does not require adoption of a related policy.
If you would like assistance with interpreting these provisions, implementing the revised law or determining whether an election is covered, 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