Get Out the Vote! A Reminder to Employers Regarding Mandatory Time Off for Voting

by Snell & Wilmer
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Employers should not be fooled into thinking that voting leave issues arise solely in presidential election years. Indeed, with the recent shutdown of the federal government, and the seemingly insurmountable impasse in Congress, it should come as no surprise to employers that employees are becoming more politically active—even in off-year elections such as this year. At its most fundamental level, political activity starts and ends at the polls, and employers should encourage their employees to be active participants in the democratic process. While voting should be encouraged, what is the employer’s obligation to provide time off, paid or unpaid, to its employees who wish to exercise their voting rights?

FEDERAL LAW

With the broad range of federal laws governing the employer/employee relationship, you may be surprised to learn that there still is no federal law governing whether an employer must provide time off to an employee to vote. While federal law protects an individual’s right to vote free from discrimination under the Voting Rights Act of 1965, federal law is silent as to an employer’s obligation to provide time off to do so. However, most states do have laws that require employers to provide at least some accommodation to employees who wish to exercise their right to vote. Below are the requirements for Arizona, California, Colorado, Nevada and Utah.

ARIZONA

If the polls are open for at least three hours before or after an employee’s work shift, then the employer need not make any accommodation. To the extent the polls are not open for at least three hours before or after an employer’s shift, however, employers must allow paid leave of up to three hours, such that the employee has three consecutive hours in which to cast his vote. For example, if the polling location is open from 7:00 a.m. to 7:00 p.m., and the employee’s shift runs from 7:00 a.m. to 5:00 p.m., then the employer must allow at least one hour paid time off at the end of the shift, so that the employee has three consecutive hours in which to vote. The paid time off is not automatic, but the employee must apply for leave before the day of the election, and the employer may specify the hours when the employee may be absent. Ariz. Rev. Stat. Ann. § 16-402.

CALIFORNIA

California Elections Code § 14000 provides that if an employee does not have sufficient time outside of working hours to vote at a statewide election, the employee may take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote. No more than two of those hours need be paid. Unless otherwise agreed between the employer and employee, the time off will be either at the beginning or end of the shift, whichever allows the most time for voting and the least time off from the regular work shift. If the employee, on the third working day prior to the day of the election, knows or has reason to believe that time off will be necessary to be able to vote on election day, the employee must give the employer at least two working days’ notice that time off for voting is desired. Employers are required to conspicuously post in the workplace a notice setting forth the provisions of California Elections Code § 14000 et seq. at least ten (10) days before the election.

COLORADO

Employers are required to give an employee up to two hours paid time off to vote, unless the employee has three consecutive nonworking hours available for voting at the polls. The employee must apply for the leave before the day of the election. The employer may specify the hours that the employee may be absent, provided, however, that the hours must be at the beginning or end of a shift if the employee so requests.

NEVADA

Nevada employers are required to give their employees “sufficient time” to vote if it is impracticable for them to vote during nonworking hours. “Sufficient time” is defined by statute, and determined by the distance between the place of employment and the individual employee’s polling location: two miles or less = 1 hour; more than two miles but less than 10 miles = 2 hours; more than 10 miles = 3 hours. Such time off is paid. The employee must apply for such time off prior to the day of the election. The employer may designate the hours an employee will take to vote. Nev. Rev. Stat. § 293.463.

UTAH

Utah employers are required to give an employee up to two hours paid time off to vote unless the employee has three consecutive nonworking hours available for voting at the polls. The employee must apply for the leave before the day of the election. The employer may specify the hours that the employee may be absent, provided, however, that the hours must be at the beginning or end of a shift if the employee so requests.

CONCLUSION

Most states have some form of law requiring time off for voting. To the extent you have employees in jurisdictions other than those listed above, be sure to verify the latest requirements for mandatory time off for voting. For purposes of drafting policies, keep in mind that these laws set forth the minimum requirements. Employers are always free to go beyond the minimum requirements of the statute. Also, be cautious in penalizing employees for minor overages in mandatory time off, or other minor conduct in connection with voting, for example, an employee who arrived late on Election Day due to heavy voter turnout.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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