November 6, 2012

In anticipation of two additional employment questions, Judge Kraft has provided the listserv with the following employment law topics, addressing  whether an employer must provide paid time off for voting and whether employers or their workers are entitled to receive benefits under the Disaster Unemployment Insurance Program (DUA). 


No better day than today to submit a comment on this issue  -  NYS Election Law section 3-110 provides that a worker is entitled to sufficient time that, when combined with available time outside working hours, will enable him or her to vote.  By statute, four hours is deemed sufficient, either from the opening of the polls until the start of the shift or from the end of the shift until polls close.  For medical facilities which do not operate on a 9a-5p schedule, this means that, to enable an employee to vote the employer must provide the employee with time off either at the beginning or end of the shift and no more than 2 such hours can be taken without loss of pay.  Technically, a worker must request the leave not less than 2 days prior or more than 10 days prior to Election Day and the employer may decide, at its option, whether the voting time will be at the beginning or end of the day; it may not be in the middle of a shift.  Also, given the effects of Hurricane Sandy, notwithstanding the two days advance notice requirement, it is highly possible that a worker would not have been able to notify the employer during the statutory period. Under these special circumstances, this should not be construed as a waiver of the employee's rights under section 3-110.

Also, in the aftermath of Superstorm Sandy, I have been asked by practice owners whether employers or their workers are entitled to receive benefits under the Disaster Unemployment Insurance Program (DUA).  DUA is a part of the government's unemployment insurance structure, but differs in that employers of business which can't produce income after a disaster may be eligible for benefits.  Under regular unemployment insurance, the owner or shareholder of a corporation is typically ineligible unless the company is defunct because there is a presumption that the entity will continue to function (work) on business activities even if the entity isn't profitable.   Fortunately, residents of NYC and the surrounding areas have not had occasion to qualify for this coverage, which is federally funded.  Now, post-Sandy, workers and some employers in the 5 boroughs of NYC, Nassau, Suffolk, Westchester and Rockland counties, which are federally declared disaster areas, may qualify for benefits.  Eligibility is immediate and runs for a maximum of 27 weeks on the basis that one has lost employment as a consequence of the storm.  Again, if you are incorporated (whether an owner of a PC, LLC, LLP or unincorporated organization) you may be ineligible for unemployment because, classically, you are engaged in business activities even if the business itself is not operational and producing income.  However, disaster unemployment assistance (DUA) is, by statute, available to small business owners, taxi drivers, vendors and farmers whose businesses have been disrupted by the storm.  If anyone, employer or employee, cannot get to work because of storm damage, lack of transportation, need to drive through an impassable area to reach the workplace, or injury as a consequence of the storm, he or she may be eligible for benefits.  This is, frankly, terra incognito for the Department of Labor and it is impossible, at this time, to determine whether the criteria will be loosely or strictly applied to applicants. 

Hope this helps.
Judge Kraft
For additional information on the above, contact me directly.  Our office regularly works with government agencies, the Department of Labor included and we would be happy to assist with any questions or concerns regarding business operations and response to Sandy.   Our thoughts are with you during this trying time.