Quick Hits
- New York law requires employers to give workers paid time off to vote when there is not enough time before or after a shift to vote.
- The First Amendment of the U.S. Constitution generally does not prevent private employers from firing or disciplining a worker for political speech that violates a company policy.
- The National Labor Relations Act protects employees’ speech that relates to the terms, conditions, and benefits of employment, which sometimes overlaps with political speech.
Time Off to Vote
The New York Election Law, Section 3-110, governs when a New York employer must give employees paid time off to vote. Employers must provide up to two hours of paid time off to vote, but only if the employee does not have sufficient time outside working hours to vote. The law provides that an employee has sufficient time to vote if there are four consecutive hours between the opening of the polls and the start of the employee’s shift, or between the end of the shift and the closing of the polls.
Polls in New York are open from 6 a.m. to 9 p.m. on Election Day. For a 9 a.m. to 5 p.m. workday, an employee is not entitled to paid time off to vote because the employee has four hours after the end of the shift to vote. However, employees who work a 9 a.m. to 6 p.m. shift, for example, must be given (if requested) one hour paid time off to vote as the pools are open only three hours before and three hours after their shift.
An eligible employee who needs time off to vote must notify the employer at least two, but not more than ten, working days before the election. Employers may want to review any company policies or collective bargaining agreements that may provide additional rights.
Captive Audience Meetings
New York enacted a law in 2023 banning mandatory workplace “captive audience” meetings. Under this law, employers in New York may not fire, discipline, threaten, or retaliate against any employee who refuses to attend employer-sponsored meetings, or listen to or read communications, where the primary purpose of the meeting or communication is to share the employer’s opinion on politicalor religious matters. “Political matters” is defined broadly to include elections, political parties, legislation, regulation, and the decision to join or support a labor organization.
The captive audience meeting law has been challenged as being preempted by the National Labor Relations Act, as it applies to union-related speech, so this is a challenge that may be resolved in litigation.
Legal Activities Law
The New York Legal Activities Law, New York Labor Law Section 201-D, protects employees who engage in certain recreational or political activities outside of working hours. The law covers “matters relating to elections for political office, political parties, legislation, regulation and the decision to join or support any political party or political, civic, community, fraternal or labor organization.” This includes running for public office, campaigning for a candidate for public office, and participating in fundraising activities for a candidate, political party, or political advocacy group. While the definitions are relatively narrow under the law, some courts have broadly construed the law to mean most political speech is protected.
Comments on social media often occur while the employee is off duty, so such comments may be legally protected. In some cases, attending rallies or making social media posts promoting a politician or a government policy may be considered a protected recreational or political activity.
Employers can fire or discipline an employee if his or her conduct or speech creates a material conflict with business interests. For example, a conflict of interest may occur when an employee’s conduct reveals trade secrets or causes the employer to lose lucrative contracts, clients, or customers. Case law is not clear on whether an employer would have to prove actual harm or simply the potential for harm caused by an employee’s conduct or speech.
Federal Laws
The free-speech protections under the First Amendment of the U.S. Constitution generally apply to government entities, but not to private employers. Private employers can legally maintain workplace policies prohibiting speech that is offensive, harassing, abusive, threatening, defamatory, or harmful to the employer’s business interests.
At the same time, private employers must comply with the National Labor Relations Act (NLRA), which protects employees’ right to participate in concerted activity related to working conditions, which may include discussing politics. For example, workers criticizing a workplace policy that they feel is unfair or discriminatory based on religious or political beliefs would most likely qualify as protected concerted activity. However, getting into a fistfight over political differences with a coworker is not protected.
On September 23, 2026, the National Labor Relations Board (NLRB) restored a more employer-friendly standard for determining when certain conduct is protected concerted activity. Applying that standard will depend on the specific facts, including whether the employer can identify the misconduct, connect the related discipline to a neutral workplace rule, and show consistent treatment of similar misconduct outside the protected-activity context.
Ogletree Deakins’ Employment Law Practice Group and New York offices will continue to monitor developments and will post updates on the Employee Engagement, Employment Law, Leaves of Absence, and New York blogs as additional information becomes available.
In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on state and federal laws around Employer Political and Religious Speech and Employee Lawful Off-Duty Conduct, including in New York. Premium-level subscribers have access to comprehensive law summaries, policies, and templates. Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.
Joseph B. Cartafalsa is a shareholder in Ogletree Deakins’ New York office.
This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.
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