The 2024 Presidential Election will be here before we know it, with Super Tuesday around the corner. With the changing landscape of voting laws and the controversies surrounding the last election, people are paying more attention to their voting rights. As a result, workers may be keeping a closer eye on voting leave laws, which generally require employers to give employees time off to vote. Employers should double-check that their policies match the law before election season rolls around, especially as employers may risk penalties for noncompliance.
While there is no federal law mandating voting leave, state laws have created a patchwork of leave requirements that can vary significantly from state to state. Below is a snapshot of this puzzle in several southern states.
Some states, such as Louisiana, Mississippi, and South Carolina, do not require employers to grant time off to vote. However, even without a clear voting leave requirement, corporations doing business in Mississippi may be liable for a $250 penalty for every unlawful interference with an employee's social, civil, or political rights: a clear voting leave policy may help prevent any "unlawful interference" concerns. Miss. Code Ann 79-1-9.
State representatives are paying attention to and changing their leave laws. For example, in February 2023, Arkansas Senator Bryan King introduced an expansive paid voting leave law. The law failed to pass, leaving Arkansas with its current, basic requirements: employers must schedule work hours on election days so that each employee has the opportunity to vote. Employers are subject to up to a $250 fine for failure to comply. Ark. Code. Ann. 7-1-102. Unlike Arkansas, Georgia successfully passed a new voting leave requirement in 2023.
Now, employers must give employees at least two hours off to vote during a primary or other election, either (1) during early voting or (2) on the day of the primary or election. Employers can tell the employee which hours the employee can miss work to vote. Even if the employee can reasonably vote during non-working hours, the employer must give the employee time off if the employee gives the employer reasonable notice. The law does not require that this leave be paid. Ga. Code Ann. § 21-2-404.
Similar to Georgia, Tennessee employers must allow employees a reasonable amount of time to vote, at most three hours. Additionally, the employee must notify the employer it intends to take leave by noon on the day before the election. Employees cannot be subject to any reduction in pay for taking this absence. However, if the election begins three hours before the employee starts working or continues for at least three hours after the employee stops working, the employee cannot take time off under this law. Tenn. Code Ann. § 2-1-106.
Similarly, in Texas, employers do not have to give employees leave if election or early voting polls are open for two consecutive hours outside of an employee's working hours. Otherwise, employers must allow employees to be absent from work on election day or during early voting. And, like in Tennessee, employers cannot penalize or otherwise reduce an employee's wages for voting. Any failure to comply is a Class C misdemeanor. Tex. Elec. Code. Ann. 276.004
To summarize, each state has specific requirements for voting laws, making it relatively easy for HR to create a compliant voting leave policy. When drafting the policy, it's important to avoid a one-size-fits-all approach, especially if the policy covers work in multiple states. Additionally, consider filling in any gaps in the leave laws. For instance, if the employer knows examples of how an employee can provide "reasonable notice" of needing voting leave, it should be included in the policy if required by a particular state law. Lastly, it's recommended to set up an email alert to stay informed of any changes in these leave laws to ensure that the policy remains up-to-date.
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.
