Even with the mid-term elections right around the corner on Nov. 8, it’s still not too late for employers to brush up on laws and regulations relating to the voting rights of employees.
Deidra Nguyen, a San Diego-based shareholder at Littler, the world’s largest employment law firm representing management, says some critical questions include: What time off do you need to give employees? Is it paid or unpaid? And what about employees’ other political activities, beyond voting?
“It’s also important to remember there are many variations and nuances to each jurisdiction’s laws,” she explains. “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.”
Nguyen offers several areas important to employers when it comes to workforce voting rights, including:
Relative to all leave benefits employees may enjoy, voting leave tends to not be as recognized, Nguyen says, perhaps because it is only available during certain times.
“However, a much broader group of employees may qualify for voting leave than for other types of leave entitlements that may hinge on an employee’s length of service or hours worked, and in many states, time off to vote is a paid leave of absence,” she explains.
For example, Nguyen notes that 31 states offer laws giving employees the right to take time off from work to vote, even where absentee or mail-in ballots are available. Many of these laws, she explains—often up to four hours of mandated leave time—kick in only if polling hours and work schedules conflict.
“When a leave requirement is triggered, states often allow employers to specify the time that employees are permitted to be absent,” she says, adding, for example, at the beginning or end of their shift.
As for advance notice by employees that they intend to vote, more than half of the states mandate workers must give notice, Nguyen explains, adding that, for example, New York requires employees to request leave at least two days before Election Day. In some cases, state laws might require such requests are in writing and/or in a specific timeframe.
When it comes to employees volunteering for a variety of election jobs—judges, precinct officials, etc.—states again vary, Nguyen says. She points to Delaware, which does not provide time off to vote but grants paid time off for employees to serve as election officials if certain conditions are met.
Nguyen says 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.
“Election workers are typically required to give employers advance notice of the leave request, and in most states the leave is unpaid,” she notes.
Regarding off-duty political conduct, Nguyen explains that in the time prior to an election many employees, of course, may be politically active, with some participating in protests and demonstrations, or publicly supporting candidates or issues.
“There are federal laws that generally apply,” she says. “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.” So, she explains, while employers can send a company-wide memo telling employees 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.
“With the mid-term elections happening soon, employers would be well-advised to review their policies and procedures, including handbooks, with particular attention paid to leave policies,” Nguyen reiterates. “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.”