Legal Considerations for Employers during Election Years—Part I

14 July 2016 Labor & Employment Law Perspectives Blog

According to the Texas Secretary of State, 73.75% of the voting age population in Texas is registered to vote this year.  Tex. Sec’y of State, Turnout and Voter Registration Figures (1970-current), available here.  Frankly, an even higher percentage probably has an opinion about a candidate or issue, regardless of whether they will cast a vote.  This is especially true every two to four years when elections garner considerable national and state-level attention and energize the electorate as few events can.  See generally id. (listing voter turnout statistics for various elections and votes over the last four and a half decades).  This election year appears to be precisely one of those times, see id., so employers may be faced with some particularly heated workplace issues as the campaign makes its way into the workplace.  With that in mind, over the next several weeks on the Work Knowledge Blog, we will be outlining various tips for employers to consider in addressing these issues.

This is the first part in that series.  Frequently, employees with children or other obligations cannot vote outside of work hours.  So the questions those employees are likely to ask their supervisors or human resources professionals are: (1) whether they can head to the polls to cast their vote during the workday; and, (2) if so, whether they will be paid for that time.

As you might expect, the best starting place for determining employer obligations in such a scenario is what employees have been told in handbooks and other written guidance.  Texas employers, for example, should keep in mind that while written employment policies are not generally contractual in nature, the Texas Workforce Commission will enforce those policies to the extent they provide more benefits or protections than the law requires.  See generally Tex. Workforce Comm’n, Vacation and Sick Leave, available here (noting that a “written policy or agreement, [for employee benefits,] will be enforced according to what it provides”).  See also Tex. Workforce Comm’n, The Texas Payday Law – Basic Issues: Priority between Pay Agreements and Statutes, available here (stating that an “express wage agreement would take precedence” over a statute if it provides more than the statutory minimums); Tex. Workforce Comm’n, The Texas Payday Law – Basic Issues: Fringe Benefits, available here (noting that, with respect to fringe benefits such as vacation pay and sick leave, “the law will enforce such fringe benefit payments according to the terms of the written policy or agreement”).  Accordingly, employers should review any policy they may have that details voting leave benefits and, if they do not have such a policy, consider putting one in place reiterating that time off to vote will be provided in accordance with applicable state laws.

So what exactly is an employer required to provide?  The answer turns on which state’s laws apply to the particular employment relationship at issue.  In Texas, for example, employers are required to provide paid time off for an employee to vote, unless the polls are open for two consecutive hours outside of the particular employee’s working hours.  Tex. Elec. Code §§ 276.004(a), (b)See also Tex. Att’y Gen. Op. No. V-1532 (1952) (stating that time off to vote does not need to be paid if the employee has sufficient time to vote outside his or her working hours).  With respect to the amount of paid voting leave Texas employers are required to provide, the Texas Attorney General has opined that it should be a “reasonable” amount of time but that the employer has some discretion in coordinating that time off, provided it is reasonable and sufficient.  Tex. Att’y Gen. Op. No. O-6242 (1944), overruled, in part, on other grounds by Tex. Att’y Gen. Op. No. V-1475 (1952).  The Texas Attorney General has further stated, though, that if the employee is working voluntarily requested (as opposed to mandatory) overtime hours, the employer is not required to provide paid time off to vote during those hours.  Tex. Att’y Gen. Op. No. M-53 (1967).  See also Tex. Workforce Comm’n, Voting – Time Off, available here (clarifying that time off from mandatory overtime to vote is required to be paid).

Other states may have similar requirements.  In Colorado, for example, an employer must provide two hours of paid leave for an employee to vote, if the employee requests leave before the election and if the employee does not have three or more non-work hours between 7:00 a.m. and 7:00 p.m. to visit the polls.  Col. Rev. Stat. § 1-7-102.  Similarly, California requires two hours of paid leave to vote at the start or end of a shift, whichever allows more free time, unless the employee has sufficient time outside of working hours to head to the polls and provided that the employee provides two working days’ notice of the need for leave.  Cal. Elec. Code. § 14000.  On the other hand, Nevada allows one, two, or three hours of paid leave, depending on how many miles from the polls the employee’s workplace is, provided the employee requests leave prior to the election day.  Nev. Rev. Stat. § 293.463.

In light of these considerations, employers should do the following:

  • Ensure that the company provides paid voting leave when it is required and in the amount outlined in the applicable state statute;
  • Update written policies to reflect that the company will provide leave as required by applicable state laws; and,
  • Advise supervisors and managers on how to handle requests from employees for time off to vote.

Because different scenarios may require different interpretations or applications of the law, it is often best to complete some or all of the above steps with the assistance of an attorney.  If you are an employer and have any questions about the laws applicable to your business and about how to comply with them appropriately during an election year, you should contact an attorney with an appropriate employment law background.

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