These Workplace Measures Are on the Ballot Nov. 6

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As citizens cast their votes during the midterm elections today, some will have the opportunity to weigh in on state-law issues like marijuana legalization and minimum-wage hikes. Here's an overview of what is on some state ballots.

Measures make their way to the ballot in a variety of ways, but they are generally posed as questions or issues that voters have an opportunity to approve or reject.

Oftentimes, ballot measures are designed to drive turnout, especially for midterm elections, noted Michael Lotito, an attorney with Littler in San Francisco. Midterm elections are held near the midpoint of a president's four-year term, at which time voters will choose many members of Congress, some state governors and other officials.

Possible entitlements, such as minimum-wage increases and marijuana legalization, might interest younger voters who are traditionally expected to vote for Democrats, so sometimes getting these issues on the ballot is part of a political strategy for voter turnout, Lotito said.

"It's actually a fairly quiet election for employment-related ballot initiatives," noted Alexander Passantino, an attorney with Seyfarth Shaw in Washington, D.C. "There were a couple [workplace ballot measures in elections] earlier in the year and state legislatures have stayed busy enacting employment-related legislation, but Nov. 6 will feature only a handful of workplace ballot initiatives."  

The Process

Ballot measures can be introduced in several ways, depending on state law. For instance, a citizens initiative affords state residents the opportunity to vote on issues that are usually determined by the state legislature or local government. After a certain number of registered voters sign a petition, a measure is put on the ballot for a public vote.

Eighteen states allow amendments to the state constitution by citizens initiatives and 22 states allow proposed statutes on the ballot by this method, with some overlap, according to Ballotpedia, a nonpartisan online political resource.

In 25 states, voters can veto legislation through a referendum. Missouri's recent right-to-work referendum is a good example of the process, said John Koenig, an attorney with Barnes & Thornburg in Atlanta. In August, Missouri voters rejected the state's new right-to-work law, which would have prevented employers and unions from requiring workers in collective bargaining units to pay mandatory fees.


California is always the leader in the number of ballot initiatives, Koenig said. It's easier in California to get initiatives on the ballot than it is in most states, he added.

It should be noted that not all ballot measures are initiated by citizens. Another type, for example, is a legislative referendum, through which a state legislature may refer a measure to voters for approval.

Minimum Wage

Residents in several states will vote on whether to raise their state's minimum wage. Arkansas voters will consider an increase from $8.50 to $11 over three years, and Missouri's initiative would increase the state minimum wage incrementally each year from $7.85 to $12 by 2023. Missouri's proposal would also increase the penalties for noncompliance, Passantino said.

Arkansas and Missouri are the most recent states to join the trend of increasing the minimum wage, said Shawn Butte, an attorney with BakerHostetler in New York City. So employers across the country should verify that they are meeting their state and local minimum-wage requirements and review their budgets to account for potential changes, he said.

Marijuana Legalization

Four states have ballot measures considering the legalization of medical or recreational marijuana use: Michigan, Missouri, North Dakota and Utah. Oklahoma voters approved a comprehensive medical marijuana law in June.

The trend to legalize recreational and medicinal marijuana use has significant implications for employers, said Amy Traub, an attorney with BakerHostetler in New York City. Although federal and state laws conflict on the subject, employers in states where such use is permitted should monitor developments under state and local laws and be aware of the legal protections for workers who use marijuana for a covered disability, she added.

[SHRM members-only HR Q&A: What laws should companies be aware of when implementing a drug testing program?]

Employers should consider what legalization would mean for workplace drug testing and zero-tolerance policies, Passantino noted. "There is no universal answer, however, as different employers will make different decisions based on their industry, the positions in question, their location and a host of other factors."

Transgender Rights

Massachusetts residents will vote on whether to repeal the state's Transgender Anti-Discrimination Law, which was passed in July but did not take effect until Oct. 1. The law bans discrimination against transgender people in public places and allows transgender individuals to use public facilities, such as bathrooms, based on their gender identity rather than their assigned sex.

Federal law prohibits employers from engaging in any kind of sex discrimination under Title VII of the Civil Rights Act of 1964. As a result, the true impact of this ballot initiative will be on employers' relationships with customers who identify as or support transgender individuals, Traub said. "Businesses that own and operate a public place of accommodation, such as a hotel or members club, will need to monitor the results of this ballot question before changing any policies related to their public facilities."

Time Off to Vote

Although there is no federal law that entitles workers to time off to vote, many states offer voting leave to employees in certain circumstances. As the general election draws near, employers should review the laws in their jurisdictions to see if they need to provide time off, Koenig said, adding that employees may also have a right to take time off to vote under the terms of a collective bargaining agreement. 

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