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Employer Voting Procedures Know Your State Laws

10/19/2016

From our offices in California, Delaware, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, and West Virginia, Dickie, McCamey & Chilcote represents clients across the country. With the election quickly approaching, it is a good time for employers to revisit their policies concerning employees’ voting rights. Generally speaking, most states have laws on the books that address an employer’s obligations with regard to giving employees time to vote on Election Day. The exceptions are North Carolina, Indiana, Montana, New Hampshire, North Dakota, and Rhode Island, where there are no voting laws. While the right to vote is universal, there are some nuances to state laws that affect voting rights for employees.

Do you have to give your employees leave time to vote?

Most of the states that have voting laws require employers to allow their employees sufficient leave time to vote. Some states such as Alaska, Arizona, Colorado, Georgia, Hawaii, Maryland, New York, and Oklahoma qualify the leave requirement by stating that an employer must allow an employee leave time to vote if there is not sufficient time to vote before or after work. What is considered sufficient varies by state but, in general, two hours is considered sufficient time to vote in Colorado, Georgia, Hawaii, Illinois, Maryland, Nebraska, South Dakota, and Texas; and three hours is considered sufficient time to vote in Arizona, Iowa, Montana, Tennessee, Utah, and Wyoming. In many states, the employer can designate the voting time for its employees.

Some states have unique requirements with regard to voting leave. In Nevada, employers must grant employees one hour if the workplace is within two miles of the polling place; two hours if the workplace is between 2–10 miles from the polling place; and three hours if the workplace is more than 10 miles from the polling place. In Massachusetts, employers must allow employees to take voting leave during the first two hours that the polls are open. In Alabama, employers must grant up to one hour of leave unless the employee begins work at least two hours after the polls open or end work at least one hour before the polls close. New York law only requires an employer to grant voting leave at the beginning and end of the work day and only so much leave so that the employee has four hours between the opening of the polls and the beginning of work or the closing of the polls and the end of work. Oklahoma law permits, but does not require, employers to change their work hours on election day so that the workday begins at least three hours after the polls open. Employers in Vermont must give employees up to four hours of voting leave in a 30-day period. Minnesota and Puerto Rico laws merely provide that employers need to give employees enough time to get to the polls, cast their ballot and return to work.

Are you required to provide paid voting leave?

Another question that is often posed at this time of year is whether employees are entitled to paid voting leave. California, Colorado, Maryland, and Nevada laws expressly state that employees must be paid for voting leave. Other states such as Alaska, Arizona, Illinois, Iowa, Kansas, Minnesota, Nebraska, South Dakota, Tennessee, Texas, and Utah provide that an employer may not deduct from wages for voting time. West Virginia law states that employers may not take deductions for voting time unless the employee had three or more non-working hours to vote and failed to do so. Hawaii law states an employer can deduct from wages of an employee who takes voting leave and fails to vote. Employers in Missouri and Oklahoma may not make deductions for voting time as long as the employee actually votes. In Wyoming, employers must pay employees if they actually vote. In states where whether the employee is paid for voting time depends on whether the employee actually voted, employers should consider adding a proof of vote requirement to their policy.

Are employees who are election officials entitled to leave?

Many states also have provisions for employees who serve as election officials. In Alabama, Delaware, Ohio, Illinois, Kentucky, Minnesota, Virginia, and Wisconsin, employers are required to give employees time off to act as election officials on Election Day. Some of the states qualify this requirement. For example, in Wisconsin, employers must allow employees who are appointed to serve as election officials to take leave for the entire 24-hour period of the election day in which they are serving in their official capacity. Employers in Virginia may not require employees who serve as election officers and whose service lasts four or more hours, including travel time, to work an employment shift that begins on or after 5 p.m. on the day of election or before 3 a.m. on the day following the election. Employers in Minnesota may limit the number of employees who take leave to serve as election judges to 20% of employees at a worksite. In Alabama, the requirements concerning leave for election officials only applies to employers with 26 or more employees.

Unique Voting Laws of Other States

Then there are other quirky laws. For example, in Pennsylvania, employers cannot pay employees in envelopes containing or displaying threats that are meant to influence employees' political opinions or actions. They also cannot exhibit handbills or placards in the workplace, within 90 days of elections or primaries, containing threats that are meant to influence employees' political opinions or actions. Mississippi law prohibits employers from allowing employees to take paid leave to provide services for or against candidates or to actively participate in election campaigns.

Penalties for employers who violate the voting laws include fines ranging from $500 to $20,000 and imprisonment. There are other penalties related to voting laws. For example, in New Jersey, employers and their agents that use threats or intimidation to influence employees' vote are guilty of a third-degree crime and can be fined up to $15,000 or imprisoned for three to five years.

These weeks leading up to the election are a good time for employers to review their policies and remind their employees of their rights and obligations under the policies so as to avoid any confusion on Election Day.