Election Day is Coming – What are Your Obligations as an Employer?

With Election Day fast approaching, employers should ensure they are in compliance with state law requirements related to employee voting rights. While not all states impose requirements on employers, some impose time off obligations and notice requirements with the possibility of criminal or civil penalties for non-compliance.

Applicable voting laws vary by state. Some state laws require paid time off to vote, while other state laws do not mandate such time off be paid. Laws also vary as to the amount of time that must be provided and whether an employer can dictate which hours are taken off, such as at the start or end of the employee’s workday. Further, some jurisdictions require postings to advise employees of their voting leave rights. Additionally, some jurisdictions also obligate employers to provide time off to employees who serve as election officials or to serve in an elected office.

Employers should immediately review existing policies and practices to ensure compliance with applicable laws and be prepared to address employee requests for time off prior to Election Day on November 6th.

The following is a sampling of state law requirements regarding employee voting time off:

Arizona – Arizona Revised Statute § 16-402 provides that an employee has the right to be absent from work if they have fewer than 3 consecutive hours in which to vote between the opening of the polls and the beginning of their work shift, or between the end of their regular work shift and the closing of the polls. An employee may be absent for a length of time at the beginning or end of the employee’s work shift that, when added to the time difference between work-shift hours and the opening/closing of the polls, totals 3 consecutive hours.

  • Notice: The employee must apply for leave prior to Election Day.
  • Hours: The employer may specify the hours.
  • Paid: Leave is paid.

California – Pursuant to California Election Code § 14000, employees are entitled to an amount of time off to vote that, when added to the voting time otherwise available to the employee outside of working hours, will enable the employee to vote. An employee with sufficient non-working time to vote is not entitled to additional time off to vote.

  • Notice: Two working days’ advance notice prior to the election is required if, on the third working day prior to the election, the employee knows or has reason to believe they will need time off in order to vote.
  • Hours: Time may be taken only at the beginning or end of the work shift, whichever allows the greatest amount of free time for voting and least time off from work, unless otherwise mutually agreed.
  • Paid: No more than 2 hours of the time taken off for voting may be without loss of pay.
  • Posting Requirement: Employers must also post a notice of voting time requirements at least 10 days before an election. Employers can satisfy this requirement by posting a copy of the “Time Off to Vote” notice available here: https://www.sos.ca.gov/elections/time-vote-notices/

Colorado – Colorado Revised Statute §1-7-102 provides that eligible voters are entitled to be absent from work for up to 2 hours for the purpose of voting on Election Day unless the employee has at least 3 non-working hours to vote while the polls are open.

  • Hours: The employer may specify the hours of absence, but the hours must be at the beginning or end of the work shift, if the employee so requests.
  • Paid: No more than 2 hours.

Hawaii – Pursuant to Hawaii Revised Statutes § 11-95, employees who do not have 2 consecutive non-working hours to vote while the polls are open are entitled to take time off up to 2 hours (excluding any lunch or rest periods) to vote, so that the time taken when added to the non-working time totals 2 consecutive hours when the polls are open. Employees cannot be required to reschedule their normal work hours to avoid the needed time off.

  • Paid: Employees must be paid for time taken during working hours. If any employee fails to vote after taking time off for that purpose, the employer, upon verification of that fact, may make appropriate deductions from the salary or wages of the employee for the period during which the employee is entitled to be absent from employment.
  • Proof: Presentation of a voter’s receipt to the employer will constitute proof of voting by the employee.

Illinois – Under Illinois Statute 10 ILCS 5/17-15, an eligible voter is allowed 2 hours to vote while polls are open if the employee’s working hours begin less than 2 hours after opening of the polls and end less than 2 hours before closing of the polls. An employer may specify the hours during which the employee may be absent.

  • Notice: Employees must provide notice prior to election day.
  • Paid: Employers cannot reduce employees’ pay for voting time leave.

Maryland – Maryland Election Law Code §10-315 states that every employer in the state must allow employees who claim to be registered voters to be absent from work for up to 2 hours on Election Day to vote if the employee does not have 2 consecutive non-working hours to vote while the polls are open.

  • Paid: Employees must be paid for up to 2 hours of absence.
  • Proof: Employees must provide proof of voting or attempt to vote on a form prescribed by the State Board.

New York – New York Election Law § 3-110 states that an employee is entitled to a sufficient amount of leave time that, when added to the employee’s available time outside of working hours, will enable the employee to vote. Four hours is considered sufficient time. An employee is excluded from leave if the employee has 4 consecutive hours in which to vote either between the opening of the polls and the beginning of the employee’s work shift or the end of the employee’s work shift and the close of the polls.

  • Notice: The employee must provide notice of leave at least 2, but not more than 10, days prior to the election.
  • Hours: The employer may specify the hours. Leave must be given at the beginning or end of the work shift, as the employer may designate, unless otherwise agreed.
  • Paid: Not more than 2 hours may be without loss of pay.
  • Posting Requirement: Employers must also conspicuously post a notice for employees about the law not less than 10 working days before every election. The notice must be kept posted until the close of the polls on election day. Employers that have yet to post such a notice can find a copy here: http://www.elections.ny.gov/nysboe/elections/attentionemployees.pdf

Tennessee – Under Tennessee Code § 2-1-106, an eligible voter must be allowed reasonable time to vote, up to 3 hours, unless polls in the county where the employee is a resident are open 3 hours before or after work. An employer may specify the hours during which the employee may be absent.

  • Notice: Employees must apply for voting leave before noon the day before the election.
  • Paid: Employers cannot reduce pay because employees take voting time leave.

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Of course, in addition to state law, local laws should be reviewed for compliance with voting leave rights. Jackson Lewis is available to answer inquiries regarding the law in your locality and to help ensure you are in compliance.

U.S. Supreme Court Roundup – 2017-2018

The U.S. Supreme Court term that ended June 2018 included decisions on many topics important to workplace law, including class action waivers in employment arbitration agreements, public-sector “agency shop” arrangements, and the Fair Labor Standard Act’s “automobile dealer” overtime exemption. The Court also examined who is a “whistleblower” protected by the Dodd-Frank Act, President Donald Trump’s travel ban executive order, and the federal bar on states legalizing sports betting.

The conclusion of the term also brought news that Justice Anthony Kennedy is retiring from the Court, effective July 31, 2018. Justice Kennedy was confirmed to the Supreme Court in February 1988 by a vote of 97-0. His departure will leave a vacancy on the nine-member Court.

Class Actions

Class action waivers in employment arbitration agreements do not violate the National Labor Relations Act (NLRA), the Supreme Court ruled in a much-anticipated decision in three critical cases. Epic Systems Corp. v. Lewis, No. 16-285; Ernst & Young LLP et al. v. Morris et al., No. 16-300; National Labor Relations Board v. Murphy Oil USA, Inc., et al., No. 16-307 (May 21, 2018). The Court explained that Section 7 of the NLRA is focused on employees’ rights to unionize and engage in collective bargaining and that Section 7 does not extend to protecting an employee’s right to participate in a class or collective action. Section 7 provides that employees have the right to form, join, or assist unions, and to engage in other concerted activities for their mutual aid and protection. The Court held, 5-4, that class action waivers in employment arbitration agreements are enforceable under the Federal Arbitration Act.

In another case, the Court ruled, 9-0, that once class action certification has been denied, a putative class member may not start a new class action beyond the applicable statute of limitations. China Agritech, Inc. v. Resh, No. 17-432 (June 11, 2018). Justice Ruth Bader Ginsburg wrote the opinion in this case. The Court ruled that the 1974 American Pipe equitable tolling rule does not apply to individual claimants banding together and filing a subsequent (“stacked”) class action. Under American Pipe,“the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.”

Union Fees

Public sector employees who are non-members of a union cannot be legally required to pay agency or “fair share” fees as a condition of employment, the Court held in a 5-4 ruling. Janus v. AFSCME Council 31, No. 16-1466 (June 27, 2018). Janus reverses the Court’s 1977 decision in Abood v. Detroit Board of Educ., 431 U.S. 209, in which the Court found such mandatory fees to be constitutional.

Fair Labor Standards Act (FLSA) Overtime Exemption

Service advisors are exempt from overtime under the FLSA’s “automobile dealer” exemption applicable to salesmen, partsmen, and mechanics, the Court held in a 5-4 decision. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2018). The case has implications far beyond the industry-specific exemption. The Court squarely rejected the principle that exemptions be “narrowly construed” against the employer.

Dodd-Frank Act

The anti-retaliation provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 protects only employees who complain directly to the Securities and Exchange Commission (SEC), the Court held in a unanimous decision. Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767 (2018). The Court based its decision on a plain reading of the Dodd-Frank Act’s definition of “whistleblower” and its anti-retaliation provision, as well as the intent of Congress in enacting the statute.

Immigration

The Court in a 5-4 decision held that President Donald Trump’s Proclamation No. 9645, known as “Travel Ban 3.0,” can stand. Trump, et al. v. Hawaii, et al., No. 17-965 (June 26, 2018). Certain individuals from Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen will continue to be subject to the ban.

In another case, the Court found, also 5-4, unconstitutionally vague the Immigration and Nationality Act’s provision that any alien convicted of an “aggravated felony” after entering the United States is subject to deportation, defining an aggravated felony as “a crime of violence.” Sessions v. Dimaya, 138 S. Ct. 1204 (2018).

Retiree Health Benefits and Contract Law

Collective bargaining agreements, including those that establish ERISA plans, should be interpreted according to ordinary principles of contract law, the Court reaffirmed in a per curiam (unsigned) opinion. CNH Industrial N.V. v. Reese, 138 S. Ct. 761 (2018). The Court found the lower court improperly inferred vesting of retiree health benefits, employing the rejected “Yard-Man inference,” in the collective bargaining context.

State Anti-Discrimination Law

The Court ruled in favor of a baker in Colorado who refused to make a wedding cake for a same-sex couple. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111 (June 4, 2018). The Court’s ruling focused on the hostility and the biased process executed by the state Commission against the baker. It did not answer the question many had in mind when the Court agreed to review the case: Whether individuals who hold sincere religious beliefs can refuse service to individuals within a protected class, including same-sex couples. The Court acknowledged this, saying, “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

State Sports Gambling

The Court struck down the federal Professional and Amateur Sports Protection Act of 1992 (PASPA), which barred states from permitting gambling on sporting events. Murphy v. National Collegiate Athletic Ass’n, No. 16-476 (May 14, 2018). The Court explained, “Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own.” The problem with PASPA, the Court stated, is that “state legislatures are put under the direct control of Congress.” The Court found that “[a] more direct affront to state sovereignty is not easy to imagine.” Within weeks of the Court’s ruling, Delaware and New Jersey launched sports betting.

Wellness programs and small businesses

Wellness programs have become popular with large companies, but small businesses benefit from the programs as well. Here are a few reasons why:

  • Recruitment: small businesses with wellness programs in place have an easier time recruiting employees, as well as retaining them.
  • Profits: small businesses take a hit when employees aren’t well, which is why a wellness program can positively impact their profits.
  • Stress: small businesses employees handle more tasks and are placed under just as much or even more stress than employees of large companies. Wellness programs not only address physical health, but mental health as well.
  • Morale: wellness programs impact employee relationships, and are proven to reduce the number of sick and personal days taken by employees. They also create a fun and positive working environment that employees enjoy.

Your business can benefit from a wellness program no matter its size. Contact a professional at WorkSTEPS to find about the right kind of wellness program for your business by calling (512) 617-4100.