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Election Year Workplace Considerations

Posted by Giovanna A. D'Orazio | Oct 13, 2020 | 0 Comments

Maybe it's objectively true, or maybe it's exacerbated by social media and the 24-hour news cycle, but the 2020 presidential election has a sense of everything being on the line.  And this is a sentiment we've seen on both sides.  So, it's not surprising that tensions are running high.  We often write about how social media use during stressful times can result in consequences in the workplace.  You can read more about that here

Today, we are talking about some other employment issues that can arise during elections: political activity at work, and your right to take time off to vote.

Time off to Vote

We'll start with your right to take time off, because we believe that using your voice by voting is incredibly important and that means making a plan.

Employees in New York are entitled to two hours of paid time off in order to vote if they do not have sufficient time outside of normal working hours.  An employee has “sufficient time” and is therefore NOT entitled to paid time off to vote if they have four consecutive hours from the time polls open and the beginning of their shift, or four consecutive hours from the end of their shift to the polls closing.

Ten working days prior to the election, employers are required to give notice of the employee's right to take time off to vote.  Employees must then given their notice of their need for time off at least two (but not more than ten) working days before the election.

FAQs about time off to vote can be found here

Political Activity at Work

In New York, the Labor Law protects certain “political activities” from discrimination in the workplace.   Specifically, New York Labor Law § 201-d provides: “it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of: a. an individual's political activities outside of working hours, off of the employer's premises and without use of the employer's equipment or other property, if such activities are legal.”

An individual's “political activities” are narrowly defined by 201-d to include: “(i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group.”  Notably, what is not included: your generalized political beliefs.

Subsection (3) of the statute also includes several exemptions where an employee would not be protected such as where the activity “creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest.”  Other than arguing that the employee's actions were not “political activities” defined by the statue, or that the employee was fired for some wholly unrelated-to-political-activity reason, this conflict of interest provision seems likely to be raised by an employer in these situations. 

If an employer violates Section 201-d, the state Attorney General may ask the court to issue an injunction requiring the employer to stop what it's doing and to impose penalties ($200 for the first violation and $500 for each subsequent violation).  An “aggrieved individual”, i.e., a person who has been harmed by the employer's unlawful actions and typically the employee himself, may also sue for “equitable relief” and damages.  “Equitable relief” means requiring the employer to actually do something – like giving the employee his or her job back – as opposed to merely paying the employee money (i.e., “damages”).

*This is not legal advice. All situations are different and depend on their own set of facts.  Nothing in this article should be relied on in taking action at work.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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