What employers need to know about employee time off to vote (and New 50-State Survey)

Election day will soon be upon us. With that comes common questions from employers about what they must do regarding employees who may need time off to work to vote.

What is an Employer Prohibited from Doing?Ohio Revised Code §3599.06 prohibits employers from discharging or threatening to discharge an employee for taking a “reasonable amount of time to vote.” The law further prohibits employers from inflicting or threatening to inflict any injury, harm, or loss against an employee to induce an employee to vote or refrain from voting for or against any person, issue or question submitted to the voters.

What Is an Employer Required to Do? Ohio employers must give their employees “reasonable time” to vote. The law, however, does not define what constitutes “reasonable time; “nor does it specify whether an employer can require an employee to apply for voting time off prior to Election Day or designate the hours the employee may miss work, though these types of provisions are not prohibited by the statute. To be on the safe side, it is advisable that employers provide employees leave to vote even when employees are able to vote during non-working hours or establish policies defining how an employee can apply for voting time off or designate hours employees may miss work to vote.

Does An Employer Have to Pay an Employee for Time Spent Voting? The law also does not indicate whether an employer has to pay the employee for time off to vote. However, the Ohio Attorney General has weighed in and has construed the RC 3599.06 to require employers only to pay salaried employees for voting time. What this means is that employers do not have to pay hourly, commissioned, or piecework employees for leave taken to vote. However, employers may not deduct a salaried employee’s pay for taking time off to vote. Such a deduction not only likely violates Ohio law but also would be a violation of the Fair Labor Standards Act.

What is the Penalty for Violating the Law? While there is no case where an employee has sued a former employer for discharging that employee for taking time off of work to vote, employers who discharge employees for taking leave to vote may be subject to a cause of action for wrongful discharge in violation of the public policy set forth in R.C. §3599.06. In addition to a potential wrongful termination claim, the penalty for voting leave violations may include orders directing the employer to pay a fine of not less than $50 but not more than $500.

For all other state voting laws, here is a 50-state survey chart!

California and New York employers, please be aware that these states have mandatory posting requirements. California employers must post the employee notice 10 days before a statewide election. More information is available here.

New York employer must post notices setting forth requirements for compliance with New York’s voting leave law at least 10 working days prior to every election day in a conspicuous place. More information is available here.