Election Time: Time off to Vote, Politic Activities, and Political Speech at Work

Below is an overview of employee rights related to voting and other forms of political activity leave, as well as protections for political speech and activity both in and outside the workplace. Below is an overview of employees’ rights related to voting and other political activities leave, as well as protections for political speech and activity both in and outside the workplace.

Voting Leave Laws

Approximately thirty states require that employers provide their employees with some form of time off to vote. Twenty-one of these states require that the leave be

paid. State laws vary in terms of the exact contours they take, such as the amount and notice required, or if there is an exemption for employees who have enough time to vote outside of work hours. Employers must give leave to employees who don’t have enough time to vote outside of work hours. The employee has enough time to vote when the polls are open four hours before or after their shift. Employees without a four-hour window can take as much leave as they need to be able to vote. This amount must not exceed two hours. Employees can only take time off to vote at the beginning or the end of their shift as determined by the employer unless both parties agree otherwise. Employees are required to notify their employer that working time off to vote is needed between two and ten working days before the election.Similarly, in

• California, employees are entitled to sufficient time off to vote, up to two hours of which must be paid. Employees must notify their employer that they need time off to vote at least two working days before the election. Employees must notify their employer at least two days before an election that they will need time off to cast their vote. Employees are required to submit leave requests a reasonable amount of time before the election date. Employers may specify the hours during which employees may take leave to vote, including requiring employees to vote during the early voting period or vote at the beginning or end of their shift during early voting or election day.In
• Illinois, employers must provide two hours of paid voting leave to employees whose shifts begin less than two hours after the opening of the polls and end less than two hours before the closing of the polls. Employees must provide notice of the need for leave before the day of the election.In
• Maryland, employees are entitled to up to two hours of paid voting leave, unless the employee has at least two non-working hours to vote while the polls are open. Employees must furnish proof to their employers that they either voted or attempted to vote, which can be in the form of a receipt issued by the State Board of Elections.Certain states, includingNew York, California, and Washington, D.C., require that employers post a notice of an employee’s right to take leave in a conspicuous location before the election. Sample notices were published by the
• New York State Board of Elections and the California Secretary of State
• as well as D.C. Board of Elections.

Other Political Leave LawsSome states require that employers provide leave for political-related reasons beyond just voting. For example:Alabama, Delaware, Illinois

,

Kentucky

• , Nebraska, Ohio, Virginia, and Wisconsin require that certain employers provide unpaid leave for employees to serve as election judges or officials on Election Day. In Minnesota, employees are entitled to paid leave for this reason; however, employers may reduce an employee’s salary or wages by the amount the employee receives as compensation for their service as an election judge.Minnesota and Texas require that certain employers provide employees with unpaid leave to attend party conventions and/or party committee meetings.Connecticut
• , Iowa, Maine, Nevada
• , Oregon, South Dakota, and Vermont require that certain employers provide employees with an unpaid leave of absence to serve as elected members of state government. In Iowa, employees are also entitled to leave to serve in a municipal, county, or federal office.In Vermont, employees may take unpaid leave to vote in annual town hall meetings.Some of these laws only apply to larger employers. In Nevada, employers who have at least 50 employees are required by law to give employees leave to serve in the state legislature. State laws also vary with respect to the amount of notice that employees must provide to their employers in order to be eligible for leave.Political Speech in the Workplace
• In our current political climate, many employers are concerned with what steps they can take regarding political speech and activity in the workplace. When these discussions or activities occur during working hours, they have the potential to negatively impact performance, productivity, or even possibly cross the line into bullying or unlawful harassment.When employees publicly attend political rallies or support causes on social media, they may also (intentionally or not) create an actual, or perceived, conflict of interest with their employer. The complicated question of what exactly employers can do around employee political speech and activity is governed by various sources of law, some of which is discussed below.Additionally, for employers with designated tax statuses, certain political speech can give pose risk to an organization’s tax-exempt status. Many tax-exempt organizations are subject to significant restrictions regarding lobbying and political activity. 501I(3) organizations, for example, risk losing their tax exempt status if they engage political campaign activities or if lobbying is a significant part of their activities. If an employee’s speech that is deemed to be political campaigning or lobbying is ratified and endorsed by the organization, it could be attributed to the organization. For example, if an employee urges their social media followers to contact their state representative about proposed legislation, this risks carrying the inference that the employee was speaking on behalf of the organization.Employee “Free Speech”There is no general right to “free speech” in a

private sector

workplace. The First Amendment does allow employers to restrict or prohibit political speech at work, as the U.S. Constitution focuses primarily on state actors. Therefore, subject to certain exceptions discussed below, private sector employers are generally able to enact prohibitions around discussing politics at work and discipline employees for violating such policies.

However, as noted, an employer’s ability to restrain political speech in the workplace comes with some restrictions. The NLRA does not protect employers from prohibiting political discussions or activities in the workplace. The NLRA therefore does not universally prevent employers from prohibiting political discussions or activities in the workplace.

However, political speech

may

be protected by the NLRA when it relates to the terms or conditions of employment, such as communicating about wages, hours, workplace safety, company culture, leaves, and working conditions. The NLRA may protect an employee who encourages co-workers vote for a particular candidate because that candidate supports a higher minimum wage. For example,

Connecticut Law prohibits employer’s from taking adverse actions against employees who exercise their First Amendment rights as long as such activity does no interfere with the employee’s job performance or employment relationship. Lawful outside activity/off-duty conduct

Many state laws prohibit adverse actions against employees for lawful activities that take place outside of the workplace. This may include political activities. Employers are prohibited in a dozen states from preventing their employees from taking part in politics or running for public office. Other states have similar laws, including

California, Louisiana

, and Minnesota. Similar laws exist in

California

,

• Louisiana, and Minnesota, among other states.Other states – including Delaware, Florida,
• Massachusetts, and New Jersey– prohibit employers from attempting to influence an employee’s vote in an election. In Florida, “t is unlawful for any person … to discharge or threaten to discharge any employee … for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people.” A dozen or so states approach this issue in a more limited fashion by prohibiting employers from attaching political messages to pay envelopes.At least two states, Illinois and Michigan[i], prohibit employers from keeping a record of employee’s associations, political activities, publications, or communications without written consent.
• Washington, D.C. prohibits discrimination in employment on the basis of political affiliation. Despite its seemingly broad scope, this statute has been interpreted to only protect political party membership and not (1) membership in a political group, or (2) other political activities, such as signing a petition.These laws vary considerably from state to state, so it is important for employers to consult the laws when considering policies or rules around employee political activity.* * *As the election approaches and early voting takes place, employers should review the applicable laws for each jurisdiction in which they operate and ensure that their policies and practices are compliant. Employers should ensure that their managers are familiar with the policies of the employer regarding voting, political speech and activities. This will allow them to respond appropriately when situations arise.

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