In April, the New York State Election Law was amended to provide that New York state employees who are registered voters may, without loss of pay for up to three hours, take off so much working time as will enable them to vote in any election. Previously, the Election Law provided that an employee was entitled to time off to vote only if he or she did not have four consecutive hours in which to vote between the opening of the polls and the start of the employee's work shift, or the end of the employee's shift and the closing of the polls. Furthermore, an employers' pay obligation was limited to only two hours. This is no longer the case.
The opinion letter is much more business-friendly than were previous letters issued under the prior administration, and it provides a checklist of factors for employers to consider in structuring contractor arrangements. It also provides peace of mind to employers in the gig economy platform space and offers them protections under the Portal-to-Portal Act, which protects from liability businesses that rely in good faith on the DOL's interpretations.
In a similar vein, the National Labor Relations Board's General Counsel's Office recently concluded in an advisory memo that Uber drivers are not legal employees for the purposes of federal labor laws, meaning they cannot form or join a union. The office concluded that Uber's business model avoids the control of drivers traditionally associated with such systems and affords drivers significant entrepreneurial opportunity. In issuing the memo, the office relied on a recent decision in the SuperShuttle DFW case, which established a new test based on "entrepreneurial opportunity" and consideration of at least 10 factors relevant to an employment relationship.
Notwithstanding recent pro-business federal guidance on the issue, several states maintain their own tests for the employee versus contractor classification, which often differ from federal standards, only adding to the uncertainty in this area of the law.
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