With just days to go before the 2018 midterm elections, candidates are sending out their final pleas for voters’ endorsements and employers are taking steps to ensure that their employees have the ability to voice their choice.  According to electionday.org, nearly 60% of voting-eligible Americans did not vote in the last midterm elections, with 35% of those nonvoters reporting that “scheduling conflicts with work or school” kept them from getting to the polls. 

So, what are employers’ obligations to employees when it comes to getting out to vote?  Federal law does not require employers to provide workers with time off to vote, though it does generally protect an employee’s right to vote by prohibiting interference with the voting process.  The majority of states (nearly 60%), however, have laws on the books that provide some level of protection to employees who need to take time off work in order to cast their vote.  The laws vary state-by-state – some states simply require an employer to allow an employee “sufficient” unpaid leave time to vote, while other states mandate 2-4 consecutive non-working hours of paid leave to vote.  In states with laws requiring employers to allow employees time off to vote, they apply to both public and private employers, and the majority of these state laws require that employees be paid for at least a portion of any such voting leave.  

In order to ensure compliance with various state laws, employers should consider the following practices:

• Maintaining voting leave policies that are compliant with the laws in all states/localities in which the company operates;

• Training managers on the applicable voting laws and any policies in advance of any major elections – particularly if they manage non-exempt employees;

• Providing employees anywhere between 2-4 hours of paid or unpaid time off at the beginning or end of a shift for voting leave in certain circumstances (typically where the employees’ daily schedule would not allow them a block of 2-4 consecutive non-working hours between the opening and closing of the polls to vote);

• Scheduling employees’ work hours on election days so that every employee will have the opportunity to exercise their right to vote;

• Allowing employees to vote during the first two hours in which polls are open in the state;

• Posting notices in the workplace reminding employees that they have the right to use time off to vote (note that such posted notices are required by some states, including California and New York); and

• Requiring employees to provide reasonable notice (anywhere from 1-7 days, depending on the applicable law) of their intention to take time off to vote.

At a minimum, employers should ensure they are in compliance with any state or local voting leave laws applicable to their locations.  Some of those laws are very detailed (time off can vary based on the mileage between a voter’s place of employment and their designated polling location; some laws apply only to employees in certain industries) while others are much more generic in scope (requiring employers to allow “reasonable” or “sufficient” time off, or “encouraging” employers to allow time off, but setting no specific rules).  In order to prevent abuse, some state laws require proof of voting before an employer is obligated to make a payment for voting leave, and many require that employees provide some level of advance notice that they will be taking time off to vote.  In many states, failure to comply with the applicable laws can subject employers to the possibility of criminal or civil penalties.

Even in states where the law does not mandate employee time off to vote, best practice for employers is to provide some base level of paid time off to employees to vote.  For employers operating in multiple states, maintaining one policy that complies with the most favorable of all of the states’ laws where the company is located is advisable.  In addition, employers will be well-served by training managers on any company voting leave policy well in advance of any major election in order to ensure that employees are aware of the policy and that managers know how to apply it.

In preparation for next week, employers should review their existing voting leave policies to ensure compliance with applicable laws.  Employers without voting leave policies should analyze the potential barriers their employees face in getting to the polls, determine the legal requirements of the states in which they operate and implement a policy that is compliant with the applicable laws and meets the company’s operational needs.  Employers should also treat time off for early voting the same way they do Election Day voting, document employees’ requests for time off to vote, direct non-exempt employees to record their time appropriately, and maintain a record of voting leave.  In addition, employers can be proactive by adding Election Day to the work calendar and having managers remind employees that the company encourages employees to use their time to vote.