With the 2020 presidential primaries underway, now is the time for employers to review their voting leave policies to ensure that supervisors and human resources departments understand applicable law. In addition to avoiding legal liability, compliance with voting-related laws helps employers maintain workplace harmony during a potentially contentious period.
Currently, 30 states (and Puerto Rico) require private employers to provide time for employees to vote. These statutes vary, however, on the issues of whether the leave is paid, notice requirements, minimum amount of leave, and employer control over when employees take leave. These laws also change periodically. For example, in 2019, New York state revised its voting leave law to provide employees with three hours of paid leave (an increase from two hours), which must occur at the beginning or end of assigned working hours. In addition, New York employees now only need to provide two days’ advance notice of their intent to take voting leave.
While 20 states (and Washington, D.C.) do not have statutory voting leave laws covering private employers, many have related provisions that become important during election season. For example, in Florida it is a third-degree felony for any employer to discharge or threaten to discharge an employee for voting or not voting in any election or for any candidate. In Indiana, Montana, New Jersey, Pennsylvania, and Rhode Island it is illegal for an employer to post a handbill or placard with threats that work will stop, that the location will be closed, or that wages will be reduced as a result of a particular election.
Knowing the rules of engagement is critical.
- Posted notice. Some states, including California and New York, require employers to conspicuously post a notice of employees’ right to take time off to vote at least 10 days before the election.
- Election/political officials. Some states also provide leave for employees to serve as election judges at polling places or as political party officials, or to participate in other political activities.
- Local law. While most voting leave laws come from the state level, employers should confirm that no municipalities or counties in which they operate provide similar leave.
- No retaliation. As with other protected leave, employers cannot retaliate against employees for taking time off to vote in accordance with applicable law.