Legal Ease
Voting and the Workplace— How to Stay in Compliance with State and Federal Laws
By Richard D. Alaniz E
lections often stir up passionate feelings—and that seems to be particularly true this year.
As
politicians and voters gear up for Tuesday, November 8, employers may not know that their workers have certain rights when it comes to elections, and corporations even have rights of their own.
Employers need to understand the obligations and restrictions regarding allowing employees time off to vote, whether they can encourage employ- ees to vote for specific candidates, and even if they can ban politicking from the workplace. Failing to do so can result in workplace discord, and in some cases, even violations of law.
Time Off to Vote There are no federal laws that grant em- ployees the right to time off from work in order to vote. However, 31 states re- quire that employers give their workers time off to visit a polling place to vote. In some states, that time off may need to be paid. For example, in Nevada employees
for whom “it is impractical to vote be- fore or after” work are entitled to one to three hours off to vote, depending on how far their workplace is from their polling station. Employees have to re- quest time off in advance, and employers can decide when leave can be granted. California workers may take up to two hours of paid time off at the beginning or end of their shift to cast their ballots, if they would otherwise not be able to vote because of their shift. Arkansas em- ployers are required to schedule workers in a manner that ensures that employees have the opportunity to vote. Penalties for failing to give employ- ees voting time off as required by state
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law can range from nearly inconsequen- tial to extremely significant. In Colora- do, companies can lose their corporate charter. Under the Texas Election Code, it is a misdemeanor when someone who has authority over an employee “refus- es to permit the other person to be ab- sent from work on election day for the purpose of attending the polls to vote; or subjects or threatens to subject the other person to a penalty for attending the polls on election day to vote.” Some states, such as California, also require companies to alert workers about their rights.
Retaliating Against Employees for Political Activity or Affiliation In some states, there are no laws against companies that discriminate or fire em- ployees for political affiliations or polit- ical activities. However, other states ex- plicitly prohibit it, including California and New York. For example, in Michi- gan, it’s a misdemeanor for a supervisor to “either directly or indirectly, discharge or threaten to discharge an employee . . . for the purpose of influencing the em- ployee’s vote at an election.” The stakes are even higher in Flor-
ida, where it’s a third-degree felony. According to Florida § 104.081 “It is unlawful for any person having one or more persons in his or her service as employees to discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people.” Other states, such as Colorado and North Dakota, prohibit discrimination for lawful conduct outside of work. Some cities also have their own regu- lations. In Seattle, “political ideology”
is protected from discrimination, along with religion, sexual orientation, and military status.
Political Displays at Work When employees wear their politics on their sleeves—or on hats, by way of pins and buttons—it can lead to workplace distractions and even heated arguments. Fortunately, companies generally have the right to prohibit political parapher- nalia in the workplace, along with cam- paign signs and solicitations. However, employers need to be careful that these policies don’t violate any provisions of the National Labor Re- lations Act, which protects the rights of employees to engage in “concerted ac- tivity.” Concerted activity occurs when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. According to the National Labor Rela- tions Board (“NLRB”), the agency that enforces federal labor law, a lone em- ployee can also engage in protected concerted activity when acting on the authority of other employees, bringing group complaints to the employer’s at- tention, trying to induce group action, or seeking to prepare for group action. If an employee combines a union message with a political one, such as a button expressing a union’s support of a particular candidate, the speech may be protected. If an employer tried to ban that button, it could find itself under in- vestigation by the NLRB.
Staying in Compliance
In order to maintain a professional work environment while also staying in com- pliance with all local, state, and federal laws, companies need to take a few ba- sic steps:
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