New York has recently amended its voting leave law to make it easier for all employees to take time off to vote. Effective immediately, all employers in New York must provide employees who are registered to vote with “up to three hours” of paid time off at the beginning or end of a work shift to vote.
Specifically, the law states that a “registered voter may, without loss of pay for up to three hours, take off so much working time as will enable him or her to vote at any election.”
Under the previous version of the law, an employee had to show he or she has insufficient time to vote outside of work hours (i.e., less than four hours when the polls were open) to take advantage of voting leave. Now, an employee now must simply notify his or her employer “not less than two days before the day of the election” of his or her intention to vote, and the employer must grant the paid leave. This change to the law raises some interesting questions.
Do I have to tell my employees about this change?
Yes. The law requires employers to post a notice of employees’ voting leave rights at least 10 days before every election. The posting (available at https://www.elections.ny.gov/NYSBOE/elections/AttentionEmployees.pdf) must be posted “conspicuously in the place of work where it can be seen as employees come or go in their place of work” and must remain until the close of polls on election day. I also strongly recommend updating your employee handbook to reflect the new law.
What if it doesn’t take the employee three hours to vote? Can I shorten the leave or require them to return to work?
The law is silent on this issue and simply says that the employee may “take off so much working time as will enable him or her to vote at any election.” If you can prove that it will only take an employee one hour to vote, then you may have an argument that the paid leave can be limited to one hour. The hard part is proving it. Talk to your attorney before making a final decision.
Can an employee pick what time of day he or she takes the leave?
Not really. The law allows an employer to designate if the leave will be taken at the beginning or end of a shift but also allows for the employer and employee to “mutually agree” to a different time.
What does “any election” mean? Does it include things like primaries, school board elections and fire district elections?
The term “election” is not defined, but “any election” likely means any election. Because of the number of elections for various local government entities, it makes most sense to leave the previously mentioned posting up all the time rather than trying to figure out when you need to put it up and take it down.
Can I ask for proof of voting registration before I allow an employee to vote?
The law is silent on this, but I see no reason why you cannot. However, if you ask one employee, you should ask all who request the leave. Otherwise, you could be opening yourself up to a discrimination claim.
What if I ignore the change? They’re not going to put me in jail, right?
Well, according to the NYS Election Law, “a person or corporation who refuses an employee entitled to vote” the opportunity to do so “is guilty of a misdemeanor.” Employers that violate the law will also likely be liable for any time off that was unpaid (and possibly for additional penalties).