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Voting Leave: What US Employers Need To Know As Election Day 2020 Approaches

With Election Day just a few weeks away, it’s an appropriate time to refresh our understanding of state voting leave laws and the obligations imposed on private sector employers by those laws.

Although absentee voting by mail and universal mail voting have become more common since the last presidential election in 2016, many voters undoubtedly intend to cast their ballots in person on November 3rd, particularly in light of various claims being made regarding the security and integrity of voting by mail. Thus, employers should anticipate that some and perhaps a significant number of employees will request time off of work in order to perform their civic duty.

Thirty (30) states have some form of voting leave laws.[1] Generally, state voting leave laws grant eligible employees time off work, when needed, in order to vote, in most cases, without experiencing loss of pay. An employee who has sufficient hours to vote outside his or her working hours is generally not eligible to take time off work to vote without experiencing loss of pay. Some states may fine employers who violate an employee’s statutory right to take time off work to vote.

Below is a summary of states’ voting leave laws.

Alabama: An employee may take up to one hour off work to vote, upon reasonable notice to his or her employer, unless the employee’s hours of employment begin at least two hours after the polls have opened or end at least one hour before the polls close. The employer may specify the hours when an employee may take off work to go vote. (Code of Ala. § 17-1-5)

Alaska: An employee may take off as much working time as necessary to vote, without loss of pay. If, however, an employee’s working hours begin either two hours after the polls have opened or two hours before the polls close, the employee is considered to have sufficient time outside working hours within which to vote and may not take time off to vote without incurring loss of pay. (Alaska Stat. § 15.15.100)

Arizona: An employee may take time off work to vote, upon notice to the employer prior to election day, if there are less than three consecutive hours between the opening of the polls and the beginning of the employee’s work shift or between the end of the employee’s work shift when the difference between work shift hours and opening or closing of the polls provides a total of three consecutive hours. The employee shall not experience loss of pay for work time taken to vote and the employer may specify the hours when an employee may take off to vote. Employers refusing an employee’s right under this statute or subjecting an employee to a penalty or reduction of wages is guilty of a class 2 misdemeanor. (A.R.S. § 16-402).

Arkansas: Employers must schedule employees’ work hours in such a way that each employee has an opportunity to go vote. An employer’s failure or refusal to comply with this statute may result in a fine of no less than $25 and no more than $250. (A.C.A. § 7-1-102).

California:  An employee without sufficient time outside working hours may take off as much time as necessary at the beginning or the end of a work shift in order to vote. An employee may not lose pay for less than two hours taken off to vote. Employees must provide at least two days’ notice of need for voting leave. (Cal. Elec. Code § 14000).

Colorado: With notification to the employer prior to Election Day, an employee may be absent from work for up to two hours in order to vote without incurring loss of pay. The employer may specify the hours when the employee may be absent, but the employee may request that the hours be at the beginning or end of the work shift. An employee with three or more off-duty hours between the time of opening and closing of the polls is ineligible for voting leave. Failure to comply is a misdemeanor offense. (C.R.S. § 1-7-102).

Georgia: Upon reasonable notice to the employer, an employee may take off up to two working hours to vote unless the employee’s working hours begin at least two hours after the opening of polls or end at least two hours before polls close. The employer may specify during which hours an employee may take off work to vote. (O.C.G.A. § 21-2-404).

Hawaii: An employee who does not have at least two consecutive non-working hours (not including any lunch or rest periods) while polls are open may take off work up to two hours to vote without incurring loss of pay. If an employee fails to vote after taking time off for that purpose, the employer, upon verifying that fact, may deduct appropriate wages or salary from the employee for the period during which the employee was absent from employment for purposes of voting. An employer who refuses an employee’s privileges conferred by this statute may be subject to a fine of not less than $50 and not greater than $300. (HRS § 11-95).

Illinois: Upon notice to an employer prior to Election Day, an employee may take off up to two hours from work to vote without loss of pay if the employee’s working hours begin less than two hours after polls open and less than two hours before polls close. The employer may specify the hours when the employee may take off work to vote. (10 ILCS 5/17-15).

Iowa: With a written request made prior to Election Day, an employee whose schedule does not provide at least three consecutive off-duty hours between the time of the opening and closing of polls, may take such time off work as necessary to grant the employee a total of three consecutive hours to vote, without loss of pay. (Iowa Code § 49.109).

Kansas: An employee may be absent from work for no more than two consecutive hours between the time of opening and closing of polls. If polls are open before the employee is scheduled to begin work or after ending work, but the period of time the polls are open is less than two consecutive hours, then the employee can only take off as much time to grant the employee two consecutive hours to vote. The employer may specify the hours to be taken as voting leave (not to include a meal period). (K.S.A. § 25-418).

Kentucky: An employee, having applied for leave prior to Election Day, may take up to four hours off work, between the time of opening and closing the polls, to vote, but the employer is not required to provide pay for the voting leave period. The employer may specify the hours during which an employee may take off work to vote. (KRS § 118.035).

Maryland: An employee may take up to two hours off work to vote if the employee does not have two continuous off-duty hours during the time that polls are open. The employee may be required to provide proof that he/she voted during the leave period. The employer shall pay the employee for up to two hours taken off work to vote. (Md. Election Law Code Ann. § 10-315).

Massachusetts: An employee in a manufacturing, mechanical, or mercantile establishment may take time off work during the two hours after the opening of polls, upon application for leave of absence during such period. (Mass. Gen. Laws ch. 149 §§ 178; 180).

Minnesota: An employee may be absent from work for the time necessary to cast a ballot and return to work on that same day without loss of pay. An employer hindering an employee’s right under this statute is guilty of a misdemeanor. (Minn. Stat. § 204C.04).

Missouri: Upon request made prior to Election Day, an employee may take off three hours from work between the time of opening and the time of closing the polls for purposes of voting if the employee does not have three consecutive hours off-duty while polls are open. The employer may specify the hours when the employee may take off work to vote. (§ 115.639 R.S. Mo.).

Nebraska: An employee who does not have two consecutive off-duty hours in the period between the time of the opening and closing of the polls may take off work up to two consecutive hours to cast a ballot and without loss of pay if the employee requested leave on or before Election Day. The employer may specify the hours during which the employee may take off work to vote. (R.R.S. Neb. § 32-922).

Nevada: If it is impracticable for an employee to vote before or after his or her hours of employment, an employee may be absent from his or her place of employment at a time designated by the employer to provide for enough time to vote. An employee shall not experience loss of pay for time taken off to vote. The number of voting leave hours depends on the distance between the place of employment and the polling location. (Nev. Rev. Stat. Ann. § 293.463).

New Mexico: An employee may take off work up to two hours for the purpose of voting unless the employee’s work shift begins two hours after polls open or ends three hours before polls close. An employer refusing an employee’s right granted by this statute is guilty of a misdemeanor and may be punished by a fine not less than $50 and not more than $100. (N.M. Stat. Ann. § 1-12-42).

New York: Upon not less than two days’ notice, employees may request up to two hours of paid time off to vote (and additional unpaid time if necessary) unless the employee has four consecutive off-duty hours either before or after their scheduled shift when the polls are open. The employer may decide when the employee may take voting leave. Employers additionally must post a notice of rights under the New York Election Law for at least 10 working days before every election until the close of the polls. (NY CLS Elec § 3-110).

North Dakota: Employers are encouraged, but not required, to establish a program to grant employees time off work to vote when the employee’s regular work schedule conflicts with the polls opening and closing time. (N.D. Cent. Code, § 16.1.01-02.1).

Ohio: Employers cannot discharge or threaten to discharge an employee for taking a reasonable amount of time off work to vote on Election Day. An employer who violates this section may be fined not less than $50 and no more than $500. (O.R.C. Ann. 3559.06).

Oklahoma: Upon oral or written notice by the employee prior to Election Day, an employer must grant an employee two hours off from work, during the period when polls are open, to allow the employee to vote, and additional time off if due to distance to polls, two hours is insufficient time to vote, unless the employee’s shift starts three or more hours after the polls open or ends three or more hours before the polls close. The employer may select and notify the employee of the work hours that may be taken off to vote, and may adjust schedules so that employees have a three-hour window to vote prior to scheduled shift start times. Employees taking time off work to vote shall not experience loss of pay or other penalty, for such absence, but may be required to provide proof of voting. An employer failing to comply with this statute may be guilty of a misdemeanor and may subject to a fine between $50 and $100. (26 Okla. Stat. tit. 26, § 7-101).

South Dakota: An employee without two consecutive off-duty hours during the time polls are open may take off two hours from work in order to vote without loss of pay. The employer may specify the hours during which the employee may take off work to vote. An employer refusing an employee’s right under this section is guilty of a Class 2 misdemeanor. (S.D.C.L. § 12-3-5).

Tennessee: An employee, upon notice to the employer before noon of the day before Election Day, may take off the time necessary to vote, up to three hours, during the time the polls are open, without loss of pay, unless the employee’s work shift begins three hours after polls open or ends three hours before polls close. The employer may specify the hours during which the employee may be absent. (Tenn. Code Ann. § 2-1-106).

Texas: An employer may not bar an employee from taking time off from work on Election Day for the purpose of voting. The law does not state how much time off an employer must provide. Voting leave is paid, but need not be provided if the employee has at least two consecutive off-duty hours while the polls are open. An employer in violation of this statute may be guilty of a Class C misdemeanor. (Tex. Elec. Code § 276.004).

Utah: Upon application prior to Election Day, an employer must allow an employee to take off from work up to two hours, between the time the polls open and close, in order to vote upon. An employee who has three or more consecutive off duty hours between the times polls open and close is not eligible to take time off work under this statute. An employer violating an employee’s rights under this statute is guilty of a class B misdemeanor. (Utah Code Ann. § 20A-3-103).

West Virginia: Upon written request made to the employer at least three days prior to Election Day, an employee may take off up to three hours off from work in order to vote. An employee shall not experience loss of pay for time taken off work to vote. An employee with three or more off-duty hours between the hours of the opening and the close of polls on Election Day may not take time off work to vote without loss of pay. Employers in essential government, health and hospital, transportation, and communication services may specify hours for voting leave. (W. Va. Code § 3-1-42).

Wisconsin: Upon notification to the employer prior to Election Day, an employee may take off up to three consecutive hours from work to vote. The employer may specify the hours when the employee may take off work to vote. Voting leave does not need to be paid, but an employer cannot penalize an employee for taking voting leave. (Wis. Stat. § 6.76).

Wyoming: An employee may take off one hour (not including meal periods) from work in order to vote without loss of pay, provided the employee actually votes. Employees who have three or more consecutive off-duty hours while polls are open are not eligible for paid voting leave. (Wyo. Stat. § 22-2-11).

[1] The following states have no laws addressing private sector employer obligations to provide employees with time off to vote: Connecticut, Delaware, Florida, Idaho, Indiana, Louisiana, Maine, Michigan, Mississippi, Montana, New Hampshire, New Jersey, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia, and Washington. Note however that some of these states have laws that prohibit certain employer action relating efforts to influence employee voting activity. For example, Florida law prohibits an employer from terminating or threatening to terminate an employee for voting or not voting in any election.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 283
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About this Author

Daniel B. Pasternak, Squire Patton Boggs, Phoenix, Labor Litigation Layer
Partner

Dan Pasternak focuses his practice on litigating labor and employment claims, representing management in traditional labor relations matters, and working with employers to develop and enforce business-sensible policies and practices to effectively manage their human resources.

Dan represents employers before federal and state courts and administrative agencies, and in arbitration and mediation proceedings, in employment matters arising under the array of federal and state employment laws, including discrimination, harassment, retaliation,...

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