Voting Rights during Working Hours

With important elections coming up on November 6, 2018, employees should be aware of the rights to exercise their right to vote. New York Election Law was amended in the 1970’s to ensure that employees will not be disenfranchised simply because their working hours prevent them from getting to the polls to cast a ballot.

Up to Two Hours of Paid Leave. Any employee who does not have time to vote before or after work, is entitled to take least two hours of paid leave during the work day. Those who do not have time to vote include employees with fewer than four consecutive non-working hours between the time that polls open (6:00 am) and when they close (9:00 pm).

For instance, employees who work 9:00 am to 6:00 pm, would have fewer than four hours before work, or after work to vote and would normally be entitled to two hours of paid leave.

Advance Notice Requirements. Employees are expected to give at least two days advance notice that he or she needs time off to vote.

Employer’s obligation to post a notice. New York Election Law requires employers to inform employees by posting a notice that describes all of the employees’ rights to vote during working hours. The notice must be in a conspicuous location and posted at least ten working days before the election, and remain posted until the polls close. If there is no notice posting, an employee might have a persuasive argument that two days advance notice is unreasonable.

Penalties for infringing employees’ rights to vote. Any person or corporation who refuses to allow the employee the right to vote, could be guilty of a misdemeanor under Election Law Section 17-118, including imprisonment up to one year, and a fine.

Disclaimer

This article is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

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Appellate Division questions NYS DHR's $60,000 civil fine imposed on absent employer

In a decision issued on October 18, 2018, the Appellate Division concluded that the New York State Division of Human Rights (NYS DHR) has a right to impose a civil fine on an employer above $50,000 limit, due to a “serious and wanton disregard for the law,” but also concluded that NYS DHR could not impose the higher fine just because the employer refused to participate in the administrative hearing.[1]

In 2017, NYS DHR found that there was probable cause that Empire Toyota Scion engaged in disability discrimination when it terminated one of its employees. Empire Toyota Scion refused to appear or participate in the administrative trial. The trial was held without the employer, and the Administrative Law Judge concluded that the employer engaged in unlawful discriminatory conduct, and recommended awards of back pay, compensatory damages, and a civil fine of $1,000.

Empire Toyota Scion then challenged the ALJ’s recommendations, through an administrative appeal. After reviewing the appeal, NYS DHR adopted the ALJ’s recommendations, but increased the fine to $60,000, citing both (a) the employer’s submission of a letter indicating it had no intention of appearing at the hearing, and (b) the employer’s “serious and wanton disregard for the law.”

The employer commenced a proceeding in Albany County Supreme Court under Executive Law §298, challenging the $60,000 fine. The Supreme Court dismissed the petition, granting NYS DHR’s cross-petition, writing that "[p]etitioner's complete disregard for [respondent's] investigation and inquiries throughout the process evinced a serious and wanton disregard for the law and warranted the imposition of a greater penalty." A judgment was entered thereon in May 2017.

On appeal, the Appellate Division reversed and remanded, holding that NYS DHR has the right to impose a civil fine of up to $50,000. However, under Executive Law § 297 (4) (c) (iv) a civil fine exceeding $50,000, up to $100,000, may be assessed only when respondent determines that the offending party "committed an unlawful discriminatory act which [was] found to be willful, wanton or malicious." The Appellate Division concluded that it was unclear if NYS DHR relied on a valid reason for exceeding the $50,000 threshold. If the increased fine was due to the employer’s “serious and wanton disregard for the law” in terms of its violation of New York Human Rights Law, then the increased civil fine was permitted. However, if the increased fine was due to the employer’s refusal to participate in the hearing, then the higher fine would have exceeded NYS DHR’s statutory authority to fine recalcitrant employers. The matter was sent back to NYS DHR for more information about its justification for the increase in the civil fine from $1,000 to $60,000.

The bottom line is that NYS DHR has discretion to impose fines on employers up to $50,000, and fines exceeding that amount may not be imposed for refusing to participate, but only where there is strong evidence of intentional discrimination.

THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE.

[1] JPK Imps./Oneonta, Inc. v. N.Y. State Div. of Human Rights, 2018 NY Slip Op 7011 (N.Y. App. Div., 2018)

Public employees in Labor Class get civil service protections

Certain public civil service employees cannot be disciplined or removed from office without receiving civil service protections described in Section 75 of New York Civil Service Law, including written notice of charges, and a full civil service hearing. Until this week, those in the "Labor Class" were not entitled to those procedures until completing 5 years of employment.

On September 7, 2018, Civil Service Law Section 75 was amended, to extend rights to labor class employees.  The amended law is effective immediately.  If you are a public employer and have any employees who fall within the "labor" civil service classification, they are now protected pursuant to Section 75. If you are an employee in this category, you are entitled to civil service protections before you are suspended, reprimanded, fined, or terminated.

This does not alter the rights that employee receive through union collective bargaining agreements.