United States: Voting And Other Political Activities: Is Your Workplace Ready For Election Day?

Last Updated: November 8 2019
Article by Evandro C. Gigante and Laura M. Fant

Another Election Day is just around the corner. And with nearly every state having at least one law addressing voting leave and/or other political-related activities, it can be easy to get tripped up in the details. In addition, some states, including New York, have recently updated their employee voting laws.

The following is an overview of just some of the laws to be aware of when election time rolls around.

Time Off to Vote

Presently, twenty-two states require some form of paid voting leave for employees. For example:

  • As we previously reported, earlier this year New York amended its voting law to require employers to provide employees with as much time off as is needed to enable the employee to vote in any election, up to three hours of which must be paid. Previously, NY state law provided that an employee was entitled to time off to vote only if the employee did not have four consecutive hours between the opening of polls and the beginning of the employee's work shift, or the end of the employee's work shift and the close of polls, and further only required paid time off of up to two hours. Now, time off to vote (up to three hours of which must be paid) must be provided regardless of an employee's work schedule in relation to polling hours, if such time is needed to enable the employee to vote. However, employees may be required to provide at least two days' advance notice of the need for time off to vote. In addition, an employee may only take time off to vote at the beginning or end of their shift, as designated by the employer, unless the employer and the employee agree otherwise.
    • New York employers also are required to post a notice regarding the employee voting law "conspicuously in the place of work where it can be seen as employees come or go to their place of work" at least ten working days before every election.
  • California also requires that employers provide paid leave for employees to vote. However, leave need only be provided if an employee does not have "sufficient time" outside of working hours to vote, and only up to two hours of such leave must be paid. The time off must be taken at the beginning or end of the employee's shift, whichever allows the most free time for voting and the least time off, unless otherwise mutually agreed to by the employer and employee. At least two working days' notice must be provided by an employee if the employee knows or has reason to believe that time off will be necessary to be able to vote.
    • Also, effective January 1, 2020, California employers cannot request or require employees to bring their vote by mail ("VBM") ballot to work or to vote their VBM ballot while at work.
  • Illinois requires employers to provide up to two hours of paid voting leave if an employee's working hours begin less than two hours after the opening of the polls and end less than two hours before the closing of the polls. Employees must provide notice of the need for leave prior to the day of the election.
  • Maryland also requires employers to grant up to two hours of paid leave to vote, unless employees have two continuous off-duty hours while the polls are open. To be eligible for such pay, employees must furnish proof that they have voted or attempted to vote.
  • Minnesota employers must allow employees to take paid leave "for the time necessary to appear at the employee's polling place, cast a ballot, and return to work" on the day of an election, regardless of the employee's work schedule in relation to polling hours.

Other states require employers to grant voting leave, but do not require that the time off be paid. For example:

  • Georgia requires employers to provide up to two hours of unpaid voting leave if an employee does not have at least two hours before beginning work or after leaving work during which the polls are open. Employees must provide notice of the need for leave prior to the day of the election.
  • Massachusetts' voting leave law applies only to employees in a "manufacturing, mechanical or mercantile establishment" and requires that a covered employer provide unpaid leave, if requested by an employee, during the period of two hours after the opening of the polls.

Other Political Leave Laws

Some states provide for leave beyond just the voting context:

  • Alabama, Delaware, Illinois, Kentucky, Minnesota, Nebraska, Ohio, and Wisconsin require employers to provide unpaid leave (or, in the case of Minnesota, paid leave) to serve as an election judge or election official.
  • Minnesota and Texas require employers to provide unpaid leave for employees to attend political conventions or party committee meetings.
  • Connecticut, Iowa, Maine, Nevada, Oregon, South Dakota, Oregon, and Vermont require that employers provide employees with an unpaid leave of absence to serve as elected members of state (and in some cases municipal) government.

Prohibitions on Political Coercion or Restricting Political Activity

Regardless of whether a state requires voting or other political leave, there are laws prohibiting employers from attempting to influence employee's political opinions or discouraging employees from voting or engaging in other political activities, such as running for office or campaigning. For example, numerous states, including Arizona, Louisiana, Massachusetts, New Mexico, and Pennsylvania, prohibit employers from making threats or promises in an attempt to influence employees' choice to vote for a particular candidate or belong to a certain political party. Washington, D.C. goes a step further and includes "political affiliation" as a protected category under the D.C. Human Rights Act. In addition, some jurisdictions, such as New York, California, Colorado, and North Dakota, have outside activities laws that may prohibit or limit employers from discriminating or taking adverse action against employees for engaging in certain lawful political activities outside of working hours and off of the employer's premises.

* * *

Given the wide range of laws governing employee voting and political activities, as November approaches, employers are well advised to review their policies to ensure their compliance. And as always, your Proskauer counsel are standing by to provide assistance.

Voting And Other Political Activities: Is Your Workplace Ready For Election Day?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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