Time Off to Vote

ARE YOU REQUIRED TO PROVIDE EMPLOYEES TIME OFF TO VOTE?

By Joseph H. Laverty, Esq.

Many employers can expect to receive requests for leave from employees seeking time off to vote due to the November midterm elections coming up.  No federal law gives private sector employees the right to take time off work to vote.  However, a majority of states do authorize such leave, especially when employees do not have time to vote before or after work.  Workers in the majority of our United States have state law requiring employers to provide time off for employees to vote.  Usually, time-off-to-vote laws mandate that employees who are registered voters be given time off from work to vote.  The customary amount of time off from work in which to vote is two to three hours.  However, this time off is usually only guaranteed if the employee does not have sufficient time outside of working hours to cast their vote.

In some states, employees must be paid for time spent during work hours casting their ballot.  Laws requiring payment for time off to vote were approved in 1952 by the U. S. Supreme Court in a pair of decisions involving Missouri and California laws:  Day-Brite Lighting, Inc. vs. Missouri, and Tide Water Associated Oil Co. vs. Robinson.  These cases were upheld as a proper exercise of the police power of the state.  A majority of state statutes indicate that employers may not penalize an employee or make wage deductions for the time the employee is permitted to be absent from work to vote.  However, most state laws indicate that paid leave is only required if the employee would not have sufficient time to vote without taking time off.  A majority of the state statutes dealing with voting rights state that if the polls will be open for a few hours while the employee is off duty (either before a shift begins or after it ends) the law will presume that the employee will be able to vote without missing work and the employer will not have to provide for leave.  Additionally, most states allow employers to require advance notice from employees of the need for leave and to designate the hours during which the employees must take leave.  A small number of states require the advance notice to be in writing.

Employers can make payment for voting leave contingent on the employee’s providing proof that he or she actually voted unless prohibited by state law.

When drafting policies granting employees leave to vote, you should identify the specific requirements of your state law and draft your policy accordingly.  Some states permit notice as late as the day before an election; however, employers may encourage workers to file requests early.  Early requests allow the employer to coordinate schedules to ensure adequate staffing during voting hours.

Penalties for employers that violate time-off-to-vote laws range from minimal ($50.00 fine) to huge (fine up to $20,000 and possible jail time).  Therefore, be especially careful in enforcing notice requirements.  Managers are advised to pay careful attention to the circumstances of the election.  For example, some employees who thought they had enough time to vote before work and therefore did not request leave might be delayed by an unexpectedly heavy turnout.  In some cases, disciplining tardy employees might be seen as a form of retaliation for an employee’s exercise of voting rights which is a violation of most voting leave laws.

Again, when you are drafting a policy for your company regarding employees’ rights for time off to vote, it is imperative that you review and are familiar with your state statute dealing with the subject.  Furthermore, you should have a legal review of the policy prior to implementation.