Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
No, no, not who to vote for. Rather, employers should brush up on laws and regulations that entitle employees to time off to vote or to serve as an election official. What time off do you need to give employees? And is it paid or unpaid? What about employees’ other political activities, beyond voting?
The following sheds some light on issues employers should keep in mind as we approach the November 8 mid-term elections. Remember, however, there are many variations and nuances to each jurisdiction’s laws. Employers should be sure to consult the applicable laws in every state and locality where their employees vote to ensure compliance with state and local requirements.
- States Requiring Voting Leave. Although there are no federal laws regarding voting time leave, a majority of states (31)1 have enacted laws giving employees the right to take time off from work to vote, even where absentee or mail-in ballots are available. Note that there have been some changes in this list since the 2020 federal election. In particular, employers may have missed Connecticut’s voter leave law, which was part of a special session budget omnibus bill enacted in June 2021. Many of these laws, which generally provide two to four hours of mandated leave time, kick in only if an employee is unable to vote outside of their work time due to conflicts between polling hours and their work schedule. When a leave requirement is triggered, states often allow employers to specify the time that employees are permitted to be absent (e.g., at the beginning or end of their shift).
- Pay Requirements. In 23 of the states requiring voting leave, the time off must be paid by the employer.2 Notably, a few states require paid leave only if the employee actually votes during the leave. For example, Maryland, Oklahoma, and Missouri require that employees taking voting leave provide their employer proof that they voted. Two states, West Virginia and Wyoming, allow employers to deduct the wages otherwise payable for the time off to vote if the employee does not provide proof they actually voted. Kentucky does not require employers to provide paid time off for voting; however, an employee who takes time off and does not vote may be subject to disciplinary action.
- Advance Notification of the Request for Leave. More than half of the states mandating voting leave require that employees who need the leave request the time off in advance. For example, New York requires employees to request leave at least two days before Election Day. State laws differ as to whether the request needs to be in writing and how far in advance of an election it must be submitted.
- Notice to Employees. As with most leave laws, some states also require employers to notify employees of the availability of time off to vote. California, the District of Columbia, and New York provide notices that must be posted.
- Election Worker Leave. In addition to voting, some employees plan to volunteer as election judges, precinct officials, and the like on Election Day. Interestingly, Delaware, which does not provide time off to vote, grants paid time off for employees to serve as a Precinct Election Official, under certain conditions. Similarly, although Virginia does not have a voting leave law, it prohibits employers from discharging or taking any adverse action against an employee who serves as an election official. Moreover, when an employee serves as an election official in Virginia for four or more hours, the employer may not force the employee to start work after 5:00 p.m. on that same day or before 3:00 a.m. the following morning.
Several other states, such as Alabama, Illinois, Kentucky, Minnesota, Nebraska, Ohio, Tennessee, and Wisconsin, specifically require employers to give employees time off, including up to an entire day, to serve as election officials (or in the case of Tennessee, to serve as voting machine technicians). Election workers are typically required to give employers advance notice of the leave request, and in most states the leave is unpaid. Again, because of the differences among state laws, employers are advised to check the applicable laws in the states and localities where their employees work.
- Off-Duty Political Conduct. In the lead-up to the election, many employees may be politically active, with some engaging in protests and demonstrations, or speaking publicly on behalf of candidates or issues. What should employers be considering? First, there are federal laws that generally apply. It is a federal crime to interfere with an individual’s ability to vote for federal candidates, or to coerce that individual to cast a ballot in a specific way.3 So, while employers can send a company-wide memo letting employees know about early or absentee voting and can provide employees with time off to vote, even when not legally required to do so, they should not provide rewards or benefits in an effort to influence employee votes.
In addition, there are state laws that prohibit employers from taking adverse action against employees because of their off-duty lawful political activities. In California, for example, employers may not discriminate, retaliate, discharge or take any other adverse action against employees who have engaged in lawful political activity away from the employer’s premises.4 Other states have similar prohibitions, including Connecticut,5 Colorado, Louisiana, Minnesota, Missouri, Nebraska, Nevada, New York, South Carolina, and Utah. Some of these laws, Like Connecticut’s, provide exceptions for off-duty employee conduct that substantially or materially interferes with the employer’s business interests.
In sum, with the mid-term elections just a month away, employers would be well-advised to review their policies and procedures, including handbooks, with particular attention to leave policies. Employers should consider proactive steps as appropriate, such as updating policies, notifying employees, and reminding managers and supervisors about employee rights with respect to voting and off-duty political activity.
1 Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, District of Columbia, Georgia, Illinois, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, Wyoming. Note that Texas law also provides that time off to attend state or local political conventions is job-protected leave.
2 Alaska, Arizona, California, Colorado, District of Columbia, Illinois, Iowa, Kansas, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Ohio (for salaried employees), Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.
3 18 U.S.C. § 594.
4 Cal. Lab. Code §§ 96(k) and 98.6.
5 Connecticut extends First Amendment protection of free speech to the employees of private employers. Conn. Gen. Stat. § 31-51q.