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Voting leave laws vary significantly from state to state
As the presidential election draws near, employers may be wondering how to handle requests for time off to vote on Election Day, which is Tuesday, Nov. 8. While there is no federal law that entitles workers to time off, many states offer voting leave to employees in certain circumstances. "Over half of the states require employers to provide voting leave, and most of those states require the leave be paid," explained Bryan Stillwagon, an attorney with Sherman & Howard in Atlanta. In many states, however, the employer may ask for advance notice of the need to take time off and may require that the leave be taken at a specific time during the workday, Stillwagon noted. At a minimum, employers should ensure they are following any applicable state rules, said Robert Nobile of Seyfarth Shaw's New York City office. Even in states where there is no specific voting leave law, it is a good practice to allow employees up to two hours of paid time off to vote if there is insufficient time for the employee to vote outside of working hours. "Encouraging and not discouraging employees should be the general rule," Nobile said.
Although state laws vary, "the general theme across the U.S. with respect to voting laws is that employees will be given time off to vote if there is insufficient time between the time the polls open and close within the state, and the time employees start and finish work," Nobile explained. "Typically, two to three consecutive nonworking hours between the opening and closing of the polls is deemed sufficient," he said. Wyoming law, for example, entitles employees to one hour of paid voting leave if the employee has less than three consecutive nonworking hours to vote. Georgia's law states that employers must provide two hours of leave to vote in "any municipal, county, state, or federal political party primary or election for which such employee is qualified and registered to vote." Employees in Georgia must provide reasonable notice to their employers and must not otherwise have two hours outside of work to attend the polls, Stillwagon said. In New York, however, employees who do not have four nonworking hours, either at the opening or the closing of the polls, are eligible to take up to two paid hours off to vote, said Susan Gross Sholinsky, an attorney with Epstein Becker & Green in New York City.
Some state laws describe employee voting leave rights in specific detail. The Nevada law defines "sufficient time to vote" based on the distance between the voter's place of employment and the designated polling place. Depending on the distance, employees get between one and three hours of paid leave if it would be difficult to get to the polls during nonworking hours. In Massachusetts, manufacturing, mechanical and mercantile employees must be allowed to vote during the first two hours that the polls are open, if they provide advance notice to their employer. Some state laws, however, are less detailed. For example, the Arkansas law dictates that employers must "schedule the work hours of employees on election days so that each employee will have an opportunity to exercise the right of franchise." Employees in Ohio must simply be given a "reasonable amount of time" to vote on Election Day.
North Dakota law "encourages" employers to establish voting leave policies without mandating any specific rules. Voting rights laws also differ from state to state in that some require paid time off to vote, while some provide unpaid time, Sholinsky explained. "Others require payment for voting leave only where the employee shows proof of voting." In addition to Washington, D.C., the following states don't have any voting leave laws on the books: Connecticut, Delaware, Florida, Idaho, Indiana, Louisiana, Maine, Michigan, Montana, New Hampshire, New Jersey, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, Vermont and Virginia. However, even in those states, employers should check if there are any local voting leave ordinances in their cities.
Notice of Leave
Most state laws require employees to provide the employer with notice that they will be taking time off to vote on the day of the election, Sholinsky said. "In Tennessee, for example, employees must provide notice prior to noon on the day before the election," she said. And "West Virginia is the only state with a voting leave law that requires written notice."
Employers should note that some states require notices to be posted in the workplace before Election Day to inform employees of their rights, Sholinsky said. As an example, "such notices need to be posted in California and New York at least 10 working days prior to an election," she said. "California and New York law each require employers to keep the notice 'posted conspicuously' at the workplace, or where it can be seen by employees as they enter or exit their place of work," she said. "So it is risky for employers in those states to merely post electronically or by e-mail.""Penalties for failure to comply with the [New York] law can result in fines from $100 to $500 and/or jail time of up to one year," said Benjamin Stockman, an attorney with Venable in New York City. Furthermore, "corporations may face the forfeiture of a corporate charter for failure to comply," he said.
Multistate employers can either maintain one policy that complies with all of the states' laws where they have offices, Sholinsky said, or have a general policy in addition to a "local practices section" of the employee handbook that notes the voting rights in the applicable state.
"Employers seeking a one-size-fits-all approach must look to the state with the most favorable voting leave law," Stillwagon said."It is obviously important that employers maintain policies that are in compliance with the laws of the states in which they operate," Stockman noted. "Prudent employers will also train managers on the voting law well in advance of any major election, as managers may not be aware that employees may be entitled to take paid time off to vote." "It's important to remember that the law sets the floor," Stillwagon added. "Companies with the happiest and most engaged employees recognize that positive morale comes from doing more than what is required."
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