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Know Your Rights: Voting in the Midterms

Posted by Giovanna A. D'Orazio | Oct 25, 2018 | 0 Comments

The midterm elections are on November 6, 2018.  In the 2016 general election, New York was 41st in the country in voter turnout.  That seems pretty bad to us.  We encourage all registered voters to make their voices heard on November 6 and, to that end, be aware of your employment rights when voting or engaging in political activity. 

New Yorkers have the right to take necessary time off from work to vote if they do not have sufficient time outside of working hours.  Ten days prior to any election, employers must post a notice informing employees of their right to take this time off.  An employee must give notice of their intention to take such time at least two days prior to election day.  More on that here

What if your employer doesn't agree with your vote?  New York offers limited protection for political activity under certain circumstances.  Specifically, the Labor Law protects certain “political activities” from discrimination in the workplace.   Section 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 or who you voted for.

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”).

There is generally no federal law protection for political activity in the private workplace.  You may recall the lady who was fired for giving President Trump's motorcade the middle finger.  (Read our article about that here).  Public employees do enjoy some but limited First Amendment protection.

Even if an individual's political activity is not protected, most employees still enjoy protection from sex and race discrimination, among other things.  So, if rules against political activity aren't applied uniformly, then there may be recourse. 

If you believe you have been terminated for engaging in protected political activity or speech, give us a call. We're happy to see if we can help.

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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