As 2018 Election Approaches, Employee Voting Leave Gains Importance

Election Day is two weeks away, and the one certainty is that interest in the outcome is at an all-time high.

An NPR story predicts that voter turnout could hit a 50-year record for a midterm election with few people, regardless of their political persuasion, neutral about President Trump.

The recent US Supreme Court confirmation vividly illustrated how strong passions are running on both sides. And with control of both the House and Senate at stake, things are sure to be at a fever pitch come November 6.

So employers scheduling meetings and business trips can ill afford to be tone deaf when it comes to the election, especially since at least 60 percent of states have some form of voting leave law. Here are some key requirements your organization should take into account:

Leave, Notice and Other Requirements

While no federal law mandates voting leave, many states have taken matters into their own hands. These laws generally provide leave ranging from one to four hours, with Kentucky on the high end of the spectrum.

Meanwhile, other states like Ohio—which says merely that “an eligible employee must be given a reasonable amount of time” to vote on an election day—are a bit vague. That’s because reasonable is in the eyes of the beholder since the term is not defined under the law.

In addition to mandating voting leave, at least two other big states require an employer to post a notice of employees’ voting leave rights prior to Election Day:

  • California (at least 10 days before a statewide election); and
  • New York (at least 10 working days before).

But notice requirements can cut both ways. For instance, several states, including California and New York, require employees to request leave prior to Election Day. These measures avoid the scenario of an employee showing up several hours late for a shift and saying afterwards that they were late because they had to vote.

Notice requirements can range anywhere from “reasonable notice” or “before the election” to much more specific stipulations. Among the lengthier employee to employer notice requirements include:

  • New York (at least two days and no more than 10 days);
  • Vermont (at least seven days);
  • West Virginia (at least three days); and
  • Wisconsin (at least seven days if serving as election official).

In addition to Wisconsin, several other states provide leave for employees who wish to serve as election officials. For instance, an employee in Kentucky must be allowed to take one full day to attend training or serve as an election officer.

It’s important to note that even employers in states that do not have laws requiring leave to vote are not immune from the election leave trend. For instance, many of those states prohibit employers from using threats, intimidation or employment termination to induce an employee either to vote or not vote. Such states include:

Employers that take adverse action against a leave-taking employee in these states, and potentially in others as well, may run the risk of facing a wrongful discharge claim.

Get Ready for Election Day

While Election Day is coming soon, it’s not too late to communicate with your employees to ensure they understand their rights as well as your organization’s policy. In fact, with all of the political commercials flooding the airwaves in many states, there may be no better time than right now.

So here are five easy steps an employer can put in place to ensure all goes smoothly:

  1. Have a clear voting leave policy and apply it equally across the board.
  2. Know how much leave is required in your state and how much notice an employee is supposed to give.
  3. Train managers and supervisors on policies and procedures to follow when an employee requests leave.
  4. Refrain from sending emails endorsing candidates, requiring attendance at a politician’s campaign stop or asking employees to forego a day’s pay in order to attend a political event.
  5. Accommodate time off requests under your voting leave policy so your employees can get to the polls without fear of reprisal.

Many states will impose a criminal penalty on an employer that fires or takes any other adverse employment action in response to an employee requesting time off to vote. Employers that ignore these laws do so at their peril.

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