With the 2024 election just two weeks away, employers in New York should understand their legal obligations with respect to employees’ participation in the election and expression of political speech in the employment setting.
Must Employers Provide Employees in New York with Time-Off to Vote in the Election?
Yes, Depending on the Circumstances. Generally, employees in New York State are eligible for up to two hours of paid time off to vote if they do not have “sufficient time” to vote outside of their scheduled working hours, provided employees notify their employer of their intention to take paid time off to vote at least 2, but not more than ten, working days prior to the election. Whether an employee has “sufficient time depends on their scheduled hours of work and the time the polls are opened either before or after the employee’s scheduled hours. For example, if an employee is scheduled to work from 9 am to 5 pm, and the polls are opened from 6 am to 9 pm, the employee is not eligible for paid time off to vote because the polls are open for four consecutive hours after the employee’s shift ends at 5 pm. By contrast, if the same employee is scheduled to work from 9 am to 6 pm, then the employee is eligible for paid time off to vote because the employee only has three consecutive hours off at the beginning or end of their shift. If an employee is eligible to take leave to vote, the employer may specify the hours. Unless otherwise agreed, leave must be given at the beginning or end of the work shift, as the employer may designate.
To ensure compliance with the New York Election Law (NY Elec. L. § 3-110), employers should review their policies and practices to ensure they align with the current requirements, including the notice posting requirement. Employers must conspicuously post a notice for employees about the law not less than 10 working days before every election. The notice must be kept posted until the close of the polls on election day.
Can Private-Sector Employers Regulate Political Discussions in the Workplace?
Generally, provided employers do not prohibit employee conversations relating to labor or working conditions even if those conversations are couched in terms of politics or current events. With the 2024 presidential election close upon us, the potential for political discord may emerge in the workplace as employees discuss the candidates for office and political issues of interest. Employers in New York should be prepared to address legal issues that can arise from political discussions by employees at work.
Political discussions about candidates and their substantive platforms often involve topics that may be divisive among some employees. Depending on the topic, the potential exists for strong disagreement among participants or witnesses to the political discussion. Unfortunately, these discussions sometimes result in complaints of unlawful discrimination, bullying or retaliation by employees. To lessen its potential exposure for such claims, some private sector employers adopt policies regulating employee speech and content affecting the workplace.
Contrary to common misconceptions, the constitutional right to freedom of speech generally applies only to government censorship of speech, therefore, private employers generally have wide discretion in limiting political speech in the workplace. Employers in New York must be mindful of state laws governing employees’ free speech or political activity. For example, the Labor Law makes it unlawful for an employer to discriminate against an individual because of their lawful “political activities outside of working hours, off the employer’s premises and without use of the employer’s equipment or property”. (NY Labor L. § 201-d[2][a]).
Employers must also be mindful of the protections afforded to employees under the National Labor Relations Act (NLRA), which protects employees’ right to engage in concerted activity for their “mutual aid and protection”. Generally, this prohibits employers from restricting non-supervisory employees’ discussions on employment-related topics or on issues related to the “terms and conditions of their employment”. Employees’ statements regarding political issues may be protected under the NLRA if there is a sufficient connection between the issue and the workplace or to the employees’ terms and conditions of employment; however, employers may regulate workplace communications that are purely political in nature (e.g., touting a particular party or candidate).
Best Practices. Private-sector employers should determine and periodically revisit their policies on political expression in the workplace. If an employee’s political expression interferes with their work, disrupts their co-workers, or infringes upon a business objective, the employer can and should act consistently with its written policies and procedures. In doing so, employers should be careful to be even-handed in the enforcement of rules.
Written by Christen D. Santiago and Nicole Marlow-Jones.