While the COVID-19 pandemic has changed some aspects of how the 2020 Presidential election is conducted, employers are facing many of the same questions they have faced in the past, such as whether they are required to give employees time off to vote, and if so, whether that time off must be paid? While there is no federal law requiring private (nongovernmental) employers to provide voting leave, at least 30 states have enacted such laws, requiring either paid or unpaid leave. The requirements of these laws vary, and many only require leave if the employee’s work schedule does not provide for a certain amount of time before or after work (such as two or three hours) while the polls are open. Most of the laws specifically require time off on election day, although Oklahoma’s law permits time off to be taken on either election day or on a day “on which in-person absentee voting is allowed by law.” While these laws are varied, most do not address issues such as whether proof of voting in person can be required, an issue that may arise in light of the increased number of states implementing voting by mail procedures, or whether time off must be provided to enable an employee to vote on an early voting day.
Regardless of legal requirements, many employers have voluntarily enacted company policies encouraging employees to vote, such as those announced by many of the members of Time to Vote, a non-partisan coalition of companies committed to ensuring their employees are able to fully participate in the upcoming election. Measures taken by these companies include “making Election Day a paid company holiday, offering paid time off on Election Day and actively promoting initiatives such as early voting and vote-by-mail, particularly in light of the challenges presented by voting amid a global pandemic.” See Press Release: Time to Vote Movement Gains Unprecedented Momentum Ahead of 2020 U.S. Election.
Other issues may also arise as the election approaches, such as questions of discrimination based on political affiliation and banning political discussions in the workplace. While federal law does not specifically prohibit discrimination by private employers based on political affiliation, some state laws do so, and some states have enacted laws prohibiting discrimination based on lawful off-duty conduct that could include political activity. Additionally, most employers will find it impractical to ban all political discussions in the workplace, and such a ban could give rise to claims under a variety of federal and state laws.
The authors of this Alert will be hosting a complimentary webinar, “Employers' Election Guide: Voting Leave, Political Speech in the Workplace, NLRA's Protections and More,” on October 22, 2020 at 2:00 EST to discuss these and other issues impacting employers in this election year. To register, click here.
Additionally, the authors have prepared a 50-State Survey providing an overview of state laws addressing leave for voting. For a copy of this survey, please contact email@example.com.
If you have any questions regarding this Alert, please contact the authors, Jeffrey Shooman, counsel in our New York City and Berkeley Heights offices, at firstname.lastname@example.org, and Maria Tavano, counsel in our Berkeley Heights office at email@example.com.Register for Employers' Election Guide: Voting Leave, Political Speech in the Workplace, NLRA's Protections and More
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