With Election Day quickly approaching, it’s the perfect time for employers to review the various protections that may exist for employees regarding voting and other political activities. The following is an overview of employee rights related to voting and other political leave, and protections for political speech and activity in and outside the workplace.
vote leave law
About 30 states require employers to provide some form of time off to employees to vote. Twenty-one of these states require paid leave. The exact nature of these laws varies by state, including the amount of leave, notice requirements, and whether there are exceptions for when an employee has sufficient time to vote outside of work hours. for example:
In New York, employers are required to provide time off to employees who do not have enough time to vote outside of work hours. An employee is considered to have sufficient time to vote if voting occurs for four consecutive hours before and after the employee’s shift. Employees who do not have these four hours are entitled to voting time off, which can be taken in addition to their off-hours voting time, up to two hours of which must be taken without loss of pay. . An employee may only take time off to vote at the beginning or end of a shift, as specified by the employer, unless mutually agreed between the employee and the employer. Employees must notify their employer that they need time off to vote two to 10 business days before the election. Similarly, in California, employees are entitled to sufficient time off to vote, up to two hours of which can be paid. Unless the employer and employee agree otherwise, the employee must take leave at the beginning or end of the shift that takes the most time to vote and the least amount of time off from work. Employees must be notified at least two business days before the election that they will need time off to vote. In Washington, DC, up to two hours of paid leave to vote in either an election held in DC if the employee is eligible to vote in DC or an election held in any jurisdiction in which the employee is eligible. have the right to obtain. Vote. Employees must submit their leave requests a reasonable amount of time before Election Day. Employers can specify when employees can take time off to vote, such as requiring employees to vote during the early voting period or at the beginning or end of their shift on early voting or Election Day. You can. In Illinois, employers must provide two hours of paid voting leave to employees whose shift begins within two hours of voting opening and ends within two hours of voting closing. Employees must provide notice of the need for leave prior to Election Day. In Maryland, employees are entitled to up to two hours of paid voting leave unless they have at least two hours of off-duty time to vote during the voting period. Employees must provide proof to their employer that they have voted or intended to vote. This can be done in the form of a receipt issued by the State Election Commission.
Some states, such as New York, California, and Washington, D.C., require employers to prominently post notices regarding employees’ leave entitlements prior to elections. Sample notices are issued by the New York State Board of Elections, the California Secretary of State, and the Washington DC Board of Elections.
Other political leave laws
Some states require employers to provide time off for politically-related reasons other than voting. for example:
Alabama, Delaware, Illinois, Kentucky, Nebraska, Ohio, Virginia, and Wisconsin require certain employers to provide unpaid leave to employees who work as election judges or officials on Election Day. are. In Minnesota, employees are entitled to paid leave for this reason. However, an employer may reduce an employee’s salary in proportion to the amount the employee receives as compensation for his or her service as an election judge. Minnesota and Texas require certain employers to provide employees with unpaid time off to attend party conventions and party committee meetings. Connecticut, Iowa, Maine, Nevada, Oregon, South Dakota, and Vermont require certain employers to provide employees with unpaid time off to serve as elected officials in state government. In Iowa, employees also have the right to resign to serve in city, county, or federal office. In Vermont, employees can take unpaid time off to vote at annual town hall meetings.
Some of these laws apply only to large employers. For example, in Nevada, employers with at least 50 employees are required to provide leave to employees who serve as state legislators. State laws also vary regarding the amount of notice an employee must give an employer in order to take leave.
political speech at work
In the current political climate, many employers are concerned about what actions they can take regarding political speech and activity in the workplace. When these discussions and activities occur during work hours, they can have a negative impact on performance and productivity, and in some cases can even cross the line into bullying or illegal harassment.
If an employee publicly participates in a political rally or supports a cause on social media, there is an actual or perceived conflict of interest with the employer (intentionally or not). Conflicts of interest may arise. The complex question of what exactly an employer can do with respect to an employee’s political speech or activity is governed by a variety of legal sources, some of which are discussed below.
Additionally, for employers with designated tax status, certain political speech may pose a risk to the organization’s tax-exempt status. Many tax-exempt organizations face significant restrictions on lobbying and political activities. For example, a 501I(3) organization risks losing its tax-exempt status if it engages in political campaign activities or if a significant portion of its activities include lobbying. Speech by an employee that constitutes political campaigning or lobbying runs the risk of being attributed to the organization if the employee’s speech is deemed to be on behalf of and is endorsed by the organization. For example, if an employee urges their social media followers to contact their state representative about a proposed bill, there is a risk that an inference could be drawn that the employee is speaking on behalf of the organization. There is a gender.
Employees’ “Freedom of Speech”
There is no general right to “free speech” in private sector workplaces. Because the U.S. Constitution is primarily about state actors, the First Amendment does not prevent private employers from prohibiting or restricting political speech in the workplace. Therefore, subject to certain exceptions discussed below, private sector employers can generally prohibit discussion of politics in the workplace and discipline employees who violate such policies.
However, as discussed above, an employer’s ability to suppress political speech in the workplace comes with some limitations. At the federal level, Section 7 of the National Labor Relations Act (“NLRA”) applies to both unionized and nonunionized employees and provides for “mutual aid or protection.” It protects certain “joint activities” of employees. Non-employment-related political speech or activity, such as an employee distributing pamphlets that generally encourage co-workers to vote for a candidate or support a political party, may be covered or protected by the NLRA would be low. Therefore, the NLRA does not uniformly prevent employers from prohibiting political discussion or activity in the workplace.
However, political speech related to terms and conditions of employment, such as communications about wages, hours, workplace safety, company culture, leave, and working conditions, may be protected by the NLRA. Therefore, an employee who encourages a co-worker to vote for a candidate because the candidate supports raising the minimum wage could claim that he or she is under the protection of the NLRA.
State law may also impose certain limitations on an employer’s attempts to limit an employee’s political speech. For example, Connecticut law prohibits an employer from taking adverse action against an employee for exercising his or her First Amendment rights unless the action interferes with the employee’s job performance or the employment relationship.
Lawful outside activities/off-duty activities
Many states have laws that prohibit adverse actions against employees based on legitimate activities outside the workplace, which may include political activities. for example:
In about a dozen states, employers are prohibited from preventing employees from participating in politics or running for office. New York Labor Law § 201-d allows an employer to engage in “political activity outside working hours, off the employer’s premises, and without the use of the employer’s equipment or other property, if such activity is lawful.” It is prohibited to dismiss or discriminate against employees for any reason. ” Political activity includes (1) running for public office, (2) campaigning for a candidate for public office, or (3) participating in a fundraiser for the benefit of a candidate, political party, or political advocacy organization. will appear. Similar laws exist in California, Louisiana, Minnesota, and other states. Other states, including Delaware, Florida, Massachusetts and New Jersey, prohibit employers from trying to influence their employees’ electoral votes. In Florida, “(i) no person shall be fired from employment for voting or not voting for any candidate or item submitted to the ballot in any election, state, county, or local government; “It is illegal for people to do so or threaten to fire them.” ” More than a dozen states have approached the issue in a more limited way by banning employers from attaching political messages to pay envelopes. At least two states, Illinois and Michigan, have Prohibits employers from retaining records of employees’ organizations, political activities, publications, communications, etc. without written consent Washington, D.C., prohibits discrimination in employment based on political affiliation. Despite its seeming broad scope, the law has been interpreted to only protect membership in political parties, including (1) membership in a political organization, or (2) signing a petition, etc. Other political activities are not protected.
These laws vary widely from state to state, so it is important for employers to refer to them when considering policies and regulations regarding employee political activity.
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As the election approaches and early voting occurs, employers should review the laws applicable to each jurisdiction in which they operate and ensure their policies and practices are compliant. Employers should also ensure that managers are familiar with the employer’s policies regarding voting and political speech and activities so that they can respond appropriately if the situation arises.
