With Election Day just around the corner, workplace scheduling may involve more adjustments than usual as employees seek to fulfill their civic duty by voting. While mid-term elections don’t typically draw the voters as much as presidential elections, this year may be different. According to the 2018 Election Calendar and Results by The New York Times, updated September 13, 2018, “the general election will decide who controls the House and the Senate. In the Senate midterm elections, Democrats hope to win at least two new seats to regain control of the chamber, but their margin for error is slim.” The article goes on to say, “In the House midterm elections, Democrats need to flip 23 seats to capture the 218 seats necessary for control of the chamber.” (https://www.nytimes.com/interactive/2018/us/elections/calendar-primary-results.html). In light of this, employers are encouraged to review company policies to ensure that employees are provided time off to vote as required by state and local laws.
There is no federal law that addresses an employee’s right to take time out of their workday to vote. However, there are multiple state laws, administrative regulations, and local ordinances that provide guidance for employers. Employers who have employees residing in multiple states are advised to remember that they should follow the individual state laws pertaining to the right to vote for those employees. Therefore, employers should be familiar with the state laws, administrative regulations, and local ordinances for the state the company is based in as well as the primary work location and residence for each employee. Employers may also consider researching early voting laws in their state and in the states where their employees reside as well.
Most states have a law that prohibits employers from disciplining or terminating employees for missing work to vote on Election Day. In certain states, voting may be considered a protected concerted activity. Employers in those states may need to be careful of employment actions, e.g. termination, demotions, etc., that could be perceived as attempting to influence an employee’s vote. Other types of guidelines addressed in different state laws, administrative regulations, and local ordinances are:
- Whether time off to vote is mandated by law for employees who don’t have a certain number of consecutive hours either prior to their workday or after the workday in which the polling station is open to vote.
- The number of hours an employer may be required to provide to employees in order to leave the workplace to vote. Typically, state law will dictate between one to four-hours but some states simply state “sufficient time” to get to the polls.
- The process and timeline that employees must follow in providing reasonable notice to their employers for requesting time off to vote. This includes how many days in advance of the Election Day employees must make the request for time off to vote so that employers may be prepared for work continuity.
- Whether time off to vote must be paid. More than 20 states require employers to pay their employees when they take time off to vote. If there is no law, company policies usually dictate whether time off to vote is paid or unpaid. When time off to vote is unpaid, companies typically allow employees to use any paid time off that they have accrued to cover the time off.
- Whether employers are required to post a notice of employee voting rights for a stipulated number of days and how that notice should be displayed.
- Whether an employer must allow an employee either paid or unpaid time off so they may volunteer to work at a polling station.
Employers who deny their employees of the right to take time off to vote may be subject to penalties and fines, depending on the state. Some states assess fines as much as $20,000 while other states assess both a fine as well as the possibility of jail time. There are even a few states in which companies may lose their corporate charters for not allowing employees time off to vote.
In the absence of any time off to vote legislation, employers in states such as Indiana have the opportunity to encourage civic involvement and promote good will by affording their employees time off to vote. Even if an employer is in a state where they legally do not have to allow time off to vote, it is recommended that companies have a written policy that includes the following items:
- Recognition of compliance with all state laws, administrative regulations, and local ordinances where their employees reside and primarily work.
- An acknowledgement and promotion of employee civic responsibilities.
- A clarification that employees are expected to go to polling stations before or after work and a statement that an employee may take time off to vote if the employee does not have enough time before or after working hours when the polling stations are open.
- A statement regarding the number of hours an employee may be gone during the working day.
- A statement clarifying whether the time away from work is paid or unpaid.
- A clearly outlined process and timeline with deadlines for requesting time off to vote.
- A statement addressing employees who want to volunteer to work at the polls on Election Day stating procedures for approval and whether employees will be paid for this time.
Finally, whatever the company policy is, it is critical that the policy is clearly communicated with employees and that managers are trained to understand and apply the policy well in advance of Election Day. With a company policy that reflects state and local legislation, clear communication to employees, and training for managers, Election Day should end up being a day to celebrate Democracy in our country instead of a harried day filled with misunderstandings and frustration.
For additional information on this topic, please contact us at www.newfocushr.com.
Written by: Kathi Walker, SHRM-SCP, PHR
Sr. HR Consultant