Employer Voting Leave Obligations

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Q: What should my company know about employers’ voting leave obligations?

A: With Election Day only a few weeks away, now is a great time for a refresher on employers’ voting leave obligations. Federal law does not require giving employees time off to vote, but most states (30 at last count) provide employees with the right to take time off from work to vote.

Paid or Unpaid?

State voting leave laws vary on whether granting time off to nonexempt employees to vote must be paid. In most states with voting leave laws, the law requires paid leave; but a handful, including Georgia, Alabama, and Wisconsin, provide for unpaid leave. For exempt employees, the answer is clear: Exempt employees who take a partial day off to vote during normal working hours may not have their pay reduced since doing so would jeopardize their exempt status under the Fair Labor Standards Act.

How Much Voting Leave Is Required?

State and local laws also vary in the amount of time that must be provided and whether an employer can dictate which hours are taken off, such as at the start or end of the employee’s workday. Many states specify the amount of time off that must be provided (typically between one to four hours), while others refer to an unspecified “reasonable” or “sufficient” amount of time. In a few states, employers must allow an employee to take the entire day off if the employee intends to volunteer to help administer the election.

Notice and Posting Requirements

Many states require employees to provide notice prior to taking time off to vote (typically a day or two in advance). In some states, including California and New York, the employer must conspicuously post a notice informing employees of their voting leave rights prior to the election (the exact timing varies by state; both California and New York require a posting 10 days prior to the election).

What About Early Voting and Vote by Mail?

Particularly in light of the pandemic, many Americans are choosing to vote early or to vote by mail. Employers may have questions about how this impacts their voting leave obligations. Typically, state laws requiring an employer to provide time off to vote also stipulate that the time off is only available to employees who lack sufficient time outside of working hours to vote. Employers could argue that states and localities with flexible voting options enable employees to vote on weekends or other days when they are not scheduled to work, eliminating the need to request voting leave on election days. Employers would be wise to consult with legal counsel prior to denying leave to an employee in these circumstances since most state laws have not yet addressed this topic.

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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