Getting Ready for Election Day: Voting Rights for Employees
We have a significant election in a few days and employers need to know about voting-leave laws ahead of Election Day on Nov. 3.
Employers should understand the applicable state-law requirements before workers request leave to vote. They should know:
· How much time employees are entitled to take off?
· When during the workday employees can take off without disrupting operations?
· Whether that time will need to be paid?
Although some employees may choose to vote by mail during the COVID-19 pandemic, others will want to cast their ballots in person, and they may have the right to take time off from work to do so.
Employers should not say anything that could be construed as discouraging or penalizing employees from attending the polls to vote on Election Day—even if it's for COVID-19 reasons—as this could violate certain states' voting-leave laws.
There is no federal law that entitles workers to time off, but many states offer voting leave to employees in certain circumstances.
Some states such as North Carolina have no voting leave laws for private employers.
Some states provide specific direction:
· Georgia states that employees who provide reasonable notice are entitled to two hours of leave to vote in "any municipal, county, state, or federal political party primary or election for which such employee is qualified and registered to vote," according to the statute.
· Wyoming entitles employees to one hour of paid voting leave if the employee has less than three consecutive nonworking hours to vote.
· Nevada defines"sufficient time to vote" based on the distance between the voter's place of employment and the designated polling place. Depending on the distance, employees get between one and three hours of paid leave if it would be difficult to get to the polls during nonworking hours.
· Massachusetts dictates that manufacturing, mechanical and mercantile employees must be allowed to vote during the first two hours that the polls are open, if they provide advance notice to their employer.
Some state laws, are less detailed, for example:
· Arkansas dictates that employers must "schedule the work hours of employees on election days so that each employee will have an opportunity to exercise the right of franchise."
· Ohio provides that employees must simply be given a "reasonable amount of time" to vote on Election Day.
· North Dakota "encourages" employers to establish voting-leave policies without mandating any specific rules.
Some states, such as California and New York, require employers to post a notice about the leave in advance of the election.
California requires employers to grant employees time off to vote:
· Employers are required to provide as much time as an employee needs to vote in a statewide election if the employee does not have sufficient time outside of working hours.
· Unless otherwise agreed, employers can schedule leave for the beginning or end of a regular work shift, whichever gives employees the most free time to vote and the least amount of missed work.
· Employers are required to pay for a maximum of 2 hours of voting time. Employees must notify their employers at least 2 working days prior to the election if they think they will need time off to vote.
Utah requires employers to grant employees time off to vote as follows:
· Employers are required to provide employees up to 2 hours of time off to vote, unless an employee has at least 3 hours of nonworking time during the time the polls are open.
· The employer may specify the time during which an employee may take leave to vote, but if the employee requests that the leave occur at the beginning or end of the work shift, the employer must grant that request.
· Employers may not deduct voting time from an employee's wages.
· Employees must apply for a voting leave of absence before the election day.
Typically, state laws requiring an employer to provide time off to vote stipulate that the time off is available only to employees who do not have sufficient time outside of working hours to vote. Employers could argue that states and localities with flexible voting options allow employees to vote on weekends or other days when they are not scheduled to work, therefore eliminating the need to request voting leave on election days.
However, in other states, employers must provide time off for early voting or ballot submission. A new law in Washington, D.C., which provides paid time off, employers can designate certain hours for voting and may require workers to take time off during an early voting period rather than on Election Day.
Employers should consult with legal counsel prior to denying leave to an employee in these circumstances, as most state laws have not yet addressed the topic of providing for early voting. My advice is to treat early voting as an election period and follow your state guidelines as if it were election day.
Most states prohibit employers from disciplining or firing an employee who takes time off from work to vote. In some states where leave is paid, employers might have the right to ask employees to prove they actually voted.
Exempt employees who take a partial day off to vote during normal working hours should not have their pay reduced, as doing so would jeopardize their exempt status under the Fair Labor Standards Act.
It is important that leadership is in compliance with local regulations and communicate polices clearly, consistently and confidently. As the HR Guy, I am available and ready to work with you to navigate this for your business. Schedule a consult here.