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Let Your People Go . . . to Vote

Posted on October 26, 2016

Audrey Mross, Texas Lawyer
October 21, 2016

Are you still undecided about Election 2016? One decision has been made for you by state legislatures across the U.S., including Texas. If you are an employer in Texas, you must let your employees go to the polls to vote, often with pay during their absence from the workplace.

State law governing employee time off for voting across the U.S. falls into three camps – (1) job-protected time off is mandated; (2) time off is encouraged; or (3) there is no law. Within the mandated time off group, the fixed amount of time off ranges from two to four hours and a few states say a “reasonable” amount of time off must be provided. Many states require that employees give an employer advance notice of the desire to be absent for a part of the workday in order to vote. At least two states (CA and NY) require that employers display a State-provided notice of employees’ rights to take time off for voting, starting at least 10 days before election day. There are also a host of state laws providing time off (usually without pay) for the entire day and protection from retaliation to individuals who serve as precinct poll workers on election day.

A compilation of states’ laws on this issue is posted here. The summaries are a bit old (2008) but statutory citations are included to facilitate research of the latest version of the law. And the price is right . . . free!

The rules for employers in Texas are found in the Election Code and include:

Retaliation Against Voter. (a) A person commits an offense if, in retaliation against a voter who has voted for or against a candidate or measure or a voter who has refused to reveal how the voter voted, the person knowingly: (1) harms or threatens to harm the voter by an unlawful act; or (2) with respect to the voter over whom the person has authority in the scope of employment, subjects or threatens to subject the voter to a loss or reduction in wages or another benefit of employment. TEX ELEC. CODE 276.001

Unlawfully Prohibiting Employee from Voting. (a) A person commits an offense if, with respect to another person over whom the person has authority in the scope of employment, the person knowingly: (1) refuses to permit the other person to be absent from work on election day for the purpose of attending the polls to vote; or (2) subjects or threatens to subject the other person to a penalty for attending the polls on election day to vote.

(b) It is an exception to the application of this section that the person’s conduct occurs in connection with an election in which the polls are open on election day for voting for two consecutive hours outside of the voter’s working hours.

(c) In this section “penalty” means a loss or reduction of wages or another benefit of employment.

(d) An offense under this section is a Class C misdemeanor. TEX ELEC. CODE 276.004

The shorthand rule in Texas is that employers should give employees who are eligible to vote (and who have not voted early) at least two hours off in which to vote, unless the employee has two consecutive nonworking hours while the polls are open (generally 7 a.m. to 7 p.m.). If you give time off at the end or start of the workday, the part of the absence that coincides with the employee’s regular working hours should be with pay. Some polling places may have “I Voted” stickers which serve as some proof that your employee actually used the time off to vote.

If you want to avoid the administrative headache of tracking and paying for this time you could simply declare that the workday on election day begins at 9 a.m. or ends at 5 p.m., to ensure that everyone has the needed two hours in which to vote. You could follow the lead of some employers who are giving their employees the entire day off, with pay, to emphasize the importance of casting a vote.

Another headache employers may be experiencing comes from the clash of ideologies that go from simmer to red hot in the weeks before a national election. If the debate between the candidates is being played out among your employees in a manner that is not good for business, you may be more successful than the hapless debate moderators in hushing the noise. Private sector employers may enforce reasonable rules against words, displays or conduct which are harassing or otherwise disruptive to the workplace. However, discussion that includes terms and conditions of employment (e.g., wages, benefits, how sexual harassment claims are handled) may be protected under the National Labor Relations Act, so some of the discord may have to tolerated.

The good news is that the November 8 election will conclude the peculiar political season we’ve all endured and watercooler talk can return to sports, Go KSU!

Audrey Mross is a senior partner at Munck Wilson Mandala, where she leads the firm’s Labor and Employment Section and writes a monthly update on employment issues called Legal Briefs for HR. You can request to be added to the distribution for this free service at amross@munckwilson.com

 

 

Reprinted with permission from the October 24, 2016 online edition of Texas Lawyer. © 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.