Election Day and the Days After: Tips for Employers

Election Day is Tuesday, November 5.

During this election season, employers may question whether the law requires them to allow employees time off to vote, often referred to as “voting leave”, and if so, whether such leave is paid. Perhaps just as urgently, employers may need to manage workplace political talk and potential consequences.

The short answer about voting leave is the same lawyers often give: it depends! Most states and many local jurisdictions have their own laws addressing voting leave and related rights. This article is not a comprehensive, state-by-state guide, and employers should check applicable laws in their jurisdictions when in doubt. Instead, this overview is a reminder of potential issues and best practices to ensure a safe and legally sound workplace in the days before and after Election Day.

Voting Leave

State and local laws on voting leave impose varying obligations on employers. Employers should review the applicable state laws and regulations of every jurisdiction in which they have employees. To highlight a few:

• California: if an employee doesn’t have sufficient time outside of working hours to vote, the employee may take off enough working time that, when added to the voting time available outside of working hours, will enable the employee to vote. Up to two hours of working time off must be without loss of pay. The time off can be at the start or end of the working shift. If the employee knows in advance that time off will be necessary to vote, the employee must give the employer at least two working days’ notice. Note that the law requires employers to post a notice to employees advising them of their rights regarding voting leave.
• District of Columbia: upon an employee’s request, an employer must provide at least two hours of paid working time off to vote. Employers may require reasonable advance notice. Employers may also specify when the employee may take the leave, including during a designated early voting period rather than on election day, or at the beginning or end of the employee’s shift. The District’s voting leave ordinance expressly prohibits retaliation against an employee for taking voting leave.
• New York: if an employee doesn’t have sufficient time outside of working hours to vote, the employee may take off enough working time that, when added to the voting time available outside of working hours, will enable the employee to vote. Up to two hours of working time off must be without loss of pay. Four consecutive nonworking hours while the polls are open is “sufficient” time to vote. Employees requiring time off to vote must notify their employers between two to ten working days in advance. As in California, New York employers must conspicuously post a notice about the voting leave law in the workplace at least ten working days before the election and must keep it posted until the polls close on election day. New York classifies violation of its voting leave law as a misdemeanor and violation may subject employers to fines, imprisonment, or both.

Political Talk

When political talk in the workplace spurs heated debates, employers may not know how to respond. Should they facilitate civil discourse, take a formal position, or just steer clear from politics and other controversies altogether?

Some employers ask whether they may restrict political speech without violating their employees’ First Amendment rights, especially given that the presidential election is a matter of public concern. The First Amendment of the United State Constitution, as well as similar rights under state constitutions, applies to government, not private, actors. Accordingly, constitutionally protected speech does not apply in the context of private employment.

That does not, however, mean private sector employees have no political speech protections, whether verbally or with buttons, pins, or other insignia. For example, under the National Labor Relations Act (NLRA), with certain exceptions, employees have a protected right to discuss working conditions. While the NLRA doesn’t protect all political speech, it may protect political speech as it relates to the terms and conditions of employment, such as discussions regarding increasing the minimum wage.

Equal employment opportunity (EEO) and civil rights laws may also come into play; while there no is federal law that prohibits employment discrimination based on political affiliation or activity, the law may protect political conversations or demonstrations if they involve a protected class. Further, some states have passed laws that prohibit discrimination based on political affiliation and legal off-duty political activity, such as New York. California expressly prohibits discrimination in employment based on political activity or affiliation, and Connecticut has a statute providing that state and federal constitutional rights to free speech apply to private sector employment, as long as the exercise of those rights do not “substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer.”

Employers should also remember that they may be constrained from proselytizing to employees, if they are located in any of the growing number of states to have banned “captive audience” meetings.     

Have a Plan

Employers should hope for the best, but plan for the worst. Remembering these five takeaways will help if anything unsettling happens during this year’s election and post-election season:

1. Set Policy: review employee handbooks, onboarding materials, and other policies and procedures to ensure employers are setting clear expectations in compliance with applicable law. This includes reviewing leave policies that address voting leave, social media and communications policies, workplace anti-harassment protocols, dress code policies, and complying with notice and posting requirements,
2. Train Regularly: conduct regular training, both for new hires and current employees, to review the organization’s policies on leave, harassment, discrimination, and social media, among others.
3. Investigate Thoroughly: create a safe means for employees to report any speech or activity that they believe is in violation of workplace policies or state and federal laws. Ensure investigations are thorough, fair, and unbiased.
4. Enforce Consistently: conduct investigations and take any adverse employment actions in the same manner for similar conduct; one employee generally should not be terminated for political speech that was made under similar circumstances by another employee, if the first employee was not disciplined.
5. Document Everything: keep detailed records of policy changes, training sessions, and ongoing and completed investigations. Ensure documentation is accurate and easily accessible, while ensuring confidentiality and data privacy where required.

Finally, employers should never go it alone when faced with a complicated workplace controversy. Prevention and early, careful intervention when trouble appears imminent are investments in effective workplaces and successful organizations.

Katherine Heaney, a Law Clerk-Admission Pending (not admitted to practice) in Epstein Becker Green’s New York office, helped prepare this article.