With the 2020 general election approaching, a review of employees’ rights and employers’ obligations to employees is in order.
Some employers are taking steps to ensure that their employees can voice their choice whether voting at traditional polling locations, early voting locations or voting by mail. According to electionday.org, more than 100 million voting-eligible Americans did not vote in the 2016 general election, with 35% of those nonvoters reporting that “scheduling conflicts with work or school” kept them from getting to the polls.
What are employers’ obligations to employees when it comes to voting rights? Federal law does not require employers to provide workers with time off to vote, though it does generally protect an employee’s right to vote by prohibiting interference with the voting process. Most states provide some level of protection to employees who require time off to vote. The laws vary by state – some states simply require an employer to allow an employee “sufficient” unpaid time to vote, while other states mandate 2-4 consecutive non-working hours of paid leave to vote. In states with laws requiring employers to grant time off to vote, they apply to both public and private employers.
Generally, employers should ensure they follow any state or local voting-leave laws. Some of those laws are detailed, while others are much more generic in scope. In order to prevent abuse, some state laws require proof of voting before an employer is obligated to make a payment for voting leave, and many require that employees provide some level of advance notice that they will be taking voting time off. In many states, failure to comply with the applicable laws can subject employers to the possibility of criminal or civil penalties.
Even in states where the law does not mandate employee time off to vote, the best practice for employers is to provide some base level of paid time off to employees to vote. For employers operating in multiple states, maintaining one policy that complies with the most favorable of all the states’ laws where the company is located is advisable. In addition, employers will be well-served by training managers on any company voting-leave policy well in advance of any major election.
Another question regarding time off to vote is how employers handle employees who live in a different state from where they work. For example, a Kansas-based employer may have employees who live in Missouri, where the voting-leave law differs from that in Kansas. Generally, employment laws apply in the state where the employee performs work. Every state’s public policy is to encourage voting in elections, and interfering with an employee’s ability to vote due to technicalities in the statutes could reflect negatively on an employer.
What about politics in the workplace? It is likely that – given many employees’ intense interest in and support of candidates and issues – some employers are losing productivity and worker focus as personnel discuss their opinions. However, private employers can reassert control by recognizing that two commonly held beliefs about “politics in the workplace” are, in fact, misconceptions.
The first misconception is that employees have a constitutional right to talk politics at work. They do not. The First Amendment applies only to government action and neither limits the rights of private employers to regulate employees’ communications nor provides any constitutional right for those workers to express their opinions at work. As a result, there is no constitutionally protected right of “free speech” in the offices and factories of private employers.
There are two general exceptions to the principle that private employers may legally prohibit political activity in the workplace. First, laws in some states provide protections for political activities. For example, several states have “free speech,” “political activity” or “off-duty conduct” laws that give employees rights not provided by federal law or the laws of other states. The laws vary widely in scope and content, and employers – particularly multistate employers – must craft their own policies. Second, the National Labor Relations Act (NLRA) restricts an employer’s right to limit non-supervisory employees’ communications about wages, hours and other terms or conditions of employment.
The second misconception is that employees must always be allowed to display and distribute political materials in the workplace. Employers generally have the right to adopt and enforce non-discriminatory rules prohibiting non-work-related activities in their workplaces, including “purely political” activities. For example, employers may ban employees from displaying or distributing materials that are purely political in nature; soliciting co-workers or customers to support purely political causes; using the employer’s computer and email systems to engage in purely political communications; or wearing buttons, shirts or other items of clothing with purely political messages. Such activities are not protected by the NLRA. In addition, employees who engage in such activities in violation of the employer’s published policies may be lawfully disciplined or discharged.
Employers need not lose control of their workplaces during the run-up to elections. A carefully crafted and uniformly enforced policy that limits political activities will lower the risk of employee claims while increasing worker productivity.