Susan Gross Sholinsky, Nancy L. Gunzenhauser, Ann Knuckles Mahoney, Marc-Joseph Gansah
As Tuesday, November 8, 2016, approaches, employers should ensure compliance with voting rights laws in the states where they operate. There is no federal law that requires employers to give workers time off to vote, but many states require some form of voting leave under specified circumstances. Employers may also be required to post notices in the workplace prior to election days, reminding employees of their voting rights.
Time Off to Vote
A majority of states have laws requiring employers to provide paid or unpaid leave to allow employees time to vote, although this requirement sometimes applies only when an employee does not have sufficient time to vote before or after work. Such laws frequently specify that employees will be provided with voting leave unless they have a particular number of hours within which to vote while polls are open. Moreover, employers may have the option of designating the time of day when an employee can take leave to vote.
In New York, for example, employers are required to provide sufficient time to vote to the extent an employee does not have four consecutive non-working hours between the opening of the polls and the beginning of their working shift or between the end of their working shift and the closing of the polls. In that case, the employee would be eligible to take up to two paid hours off to vote, either at the beginning or end of the employee’s shift as the employer may designate, unless mutually agreed otherwise.
Similarly, in California, employees may take up to two hours of paid leave at the beginning or end of their shift if they do not otherwise have sufficient time to vote outside of their working hours.
New Jersey, Connecticut, and the District of Columbia, on the other hand, do not have any laws requiring employers to provide employees with time off to vote.
Some state laws require payment for voting leave only where the employee shows proof of voting, such as in Hawaii, where the employee must show a voter’s receipt. If the employee cannot do so, the employer need not pay for the time off.
Notice by Employees
Many state laws require employees to submit a written request for voting leave, prior to Election Day. In New York and California, employees must give notice at least two working days prior to the election date.
Employers may be required to post a notice in the workplace before the elections, to inform employees of their rights. In New York and California, for example, the posted notice must be posted at least 10 working days prior to an election.
What Employers Should Do Now
In anticipation of Election Day, employers should:
- review applicable voting time-off laws in the states where they do business;
- post notices, where required to do so;
- analyze whether, based on start times and end times, employees will have sufficient time to vote; and
- consider including a voting time-off policy in the organization’s employee handbook.
For more information about this Advisory, please contact:
*Marc-Joseph Gansah, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this Advisory.