October 30, 2020 - United States of America

Election Day Obligations: What Employers Need to Know

As Election Day quickly approaches in the highly anticipated presidential and congressional elections, employers are faced with a slew of questions about their employees’ rights on November 3 and beyond.

Election Day is not a national holiday; therefore, federal law doesnotmandate employers provide employees with time off to vote. Employers must assess their obligations under state law as to whether their employees can leave work to vote and, if so, whether they must pay employees for time spent at the polls. More than half of states require employers to provide employees time off from work to vote. Of those states, the law varies as to how much time is allotted and whether that time is paid or unpaid. Some states’ laws are subject to further caveats, for example, proof a ballot was cast. Employers should also ensure their handbook’s time-off provisions are consistent with their state’s voting rights. For example, in Texas, an employee has the right to take paid time off to vote on Election Day. If, however, the employee has at least two consecutive hours off of work while the polls are open, the employer need not allow the employee to leave in the middle of his or her shift.

In Illinois, employees are entitled to up to two hours of paid time in their workday to vote, unless, like Texas, the polls are open two hours before or after the employee’s shift. The employer may specify the hours an employee takes to vote, meaning employers may stagger employees’ trips to the polls to ensure they have sufficient coverage throughout the day. Employees exercising their right to vote during work hours must notify their employer the day before the election that they intend to vote during the workday.

In California, if an employee does not have sufficient time outside of working hours to vote, the employer must provide up to two hours of paid time to vote at the beginning or end of the employee’s shift. California employers must also post a notice at least 10 days prior to every statewide election apprising employees of their right to take time off to vote. Much like Illinois, employees are required to notify their employer at least two days in advance of their intent to take time off to vote.

Other states that require time off to vote on Election Day, whether paid or unpaid, include Alabama, Alaska, Arizona, Arkansas, Colorado, Georgia, Hawaii, Iowa, Kansa, Kentucky, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Ohio, Oklahoma, South Dakota, Tennessee, Utah, West Virginia, Wisconsin, and Wyoming.

This year, with unprecedented turnout in early voting and more Americans voting by mail than ever before, it is difficult to anticipate how busy polling sites will be on November 3. This level of engagement also indicates that many employees will likely vote on Election Day. Employers should communicate their expectations and their employees’ rights under state law to prevent inadvertent interference with employees’ rights to vote.

Beyond just permitting employees to leave work to vote when state law so requires, employers should be cautious not to engage in any conduct that could be perceived as retaliatory following an employee’s exercise of their right to vote or their exercise of political speech. In several states—including many that do not require time off to vote—there are express prohibitions against influencing, threatening, intimidating, or retaliating against employees with respect to their political opinions or actions. Texas employers, for example, are subject to criminal penalties for retaliating against an employee’s choice in candidate or measure or an employee’s refusal to disclose how he or she voted.

Finally, employers should be hesitant to impose bans on political discourse in the workplace. While it can be tempting to broadly forbid such conversation in an attempt to avoid contentious debates, employers should exercise caution in policing political speech. Employees’ First Amendment Rights to free—and political—speech are not applicable to private employers. However, there are certain exceptions if the political speech is related to an employee’s job or terms and conditions of employment. Curbing political speech outside of the workplace—such as on social media—can also be perilous, if such speech touches on the terms and conditions of employment or is may otherwise be characterized as legally protected speech. Employers should also examine any existing policies banning political apparel or paraphernalia to ensure they do not encroach on employees’ rights of expression under any applicable constitution, federal law (such as the National Labor Relations Act), or state law. Many states (such as Texas) have specific statutes prohibiting employers from taking adverse action against employees based on their political affiliation, involvement in certain political activities, or expression of political speech.

As a best practice, and rather than implementing a wholesale ban on political speech, employers should remind their workforce that policies prohibiting discrimination, harassment, and retaliation still apply and encourage their employees to treat each other with respect and dignity.

The foregoing is a brief summary of the potential issues and varying state laws that surround the 2020 Election. It is critical employers learn the laws in the states they operate in to ensure they are not refusing or denying employees their guaranteed rights or penalizing or retaliating against employees for exercising those rights. Contact the authors of this blog or anyDykema Labor & Employmentattorney for more information.