The right to vote, while often overlooked, is one of the greatest advantages America has in relation to the rest of the world. From the very founding of this Country, voting has been the linchpin of democracy because the persons responsible for creating and implementing laws have placed the right to vote over outwardly characteristics, such as religious affiliations, race, sex, money or age. Thomas Jefferson put it best when he said:
"The elective franchise, if guarded as the ark of our safety, will peaceably dissipate all combinations to subvert a Constitution, dictated by the wisdom, and resting on the will of the people... Should things go wrong at any time, the people will set them to rights by the peaceable exercise of their elective rights." -Thomas Jefferson, The Jeffersonian Cyclopedia, John P. Foley, ed. (New York: Funk & Wagnalls Company, 1900), p. 842.
With the November 6th general election quickly approaching, it is important to keep this in mind--especially when the policy behind voting laws is to ensure that Americans have the opportunity to fulfill their civic duty. Understanding how voting laws and the employer/employee relationship intertwine is paramount. While there are no federal laws mandating businesses to give employees time off from work to vote, many states--including Texas--require it.
According to the Texas Workforce Commission and Texas Election Code Chapter 276, there are several bottom-line considerations:
(1) Let employees have at least two hours off to vote on an election day (unless they have already voted under early voting procedures). A violation could result in a Class C Misdemeanor.
(2) If such voting time cuts into the employee's normal working hours, it needs to be paid time off. However, such time off does not need to be paid if the two hours are available outside of normal working hours.
- For example, if you have an employee who regularly works 9:00 a.m. to 6:00 p.m. with a one-hour lunch break, an employer should give that employee time off from work on election day to attend to the polls and vote. According to votetexas.gov, Texas election polls are generally open from 7:00 a.m. until 7:00 p.m.
(3) If the time is taken off from mandatory overtime, the time off should be paid at the rate that would have applied to the time so missed.
(4) If the time is taken off from optional overtime voluntarily requested by the employee, the time off does not need to be paid, since the time off would be outside of normal working hours and is time that the employee voluntarily chose to spend working rather than voting.
(5) An employer commits a third degree felony if it retaliates against an employee who has voted for or against a candidate or measure or who has refused to reveal how he/she voted.
- For example, the employer, who supports Candidate A, acts unlawfully if it terminates an employee because he or she voted for Candidate B. Likewise, if the employer requests to know how an employee voted and the employee refuses to answer, the employer cannot punish the employee for declining to answer.
(6) Attendance at state or local political conventions is job-protected leave, but such time off does not have to be paid. Chapter 161 of the Texas Election Code provides that "'penalty' means a loss or reduction of wages or other benefit of employment other than a deduction for the actual time of absence from work."
Regardless of the law, it is normally not a good idea to deny an employee time off to vote. Worse yet, an employer who retaliates/terminates an employee for taking time off to vote may subject itself to criminal charges, bad publicity, and a wrongful discharge lawsuit based on a violation of public policy.
Instead, employers should take steps to avoid work interruptions and payment obligation for otherwise nonworking time on election day. First, think about encouraging (not mandating) employees to vote early. Second, perhaps rearrange work schedules on November 6th to ensure employees have two hours outside of their normal work hours to vote (i.e. work from 9:00 a.m. until 6:00 p.m. to take advantage of the 7:00 a.m. voting commencement, or work from 8:00 a.m. until 5:00 p.m. to be able to take advantage of the 7:00 p.m. voting cutoff).