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Federal law does not require giving employees time off to vote, but a majority of states and some local ordinances mandate voting leave time, especially when an employee's work hours do not permit sufficient time to vote during poll hours.
In terms of pay, state voting-leave laws vary on whether such time off must be paid or unpaid for nonexempt employees. Exempt employees who take a partial day off to vote during normal working hours should not have their pay reduced, as doing so would jeopardize their exempt status under the Fair Labor Standards Act.
Laws also vary as to the amount of time that must be provided and whether an employer can dictate which hours are taken off, such as at the start or end of the employee's workday. Some jurisdictions require postings to advise employees of their voting-leave rights. Additionally, some jurisdictions require employers to provide time off to employees who serve as election officials or to serve in an elected office.
Even in states where there is no voting-leave law, it is good practice to let employees take paid time off to vote if there is not enough time for the employee to vote outside of working hours. Employers can also encourage employees to vote by making Election Day a company holiday or by giving employees information about early and absentee voting options.
One developing area that is unclear for many employers is how to handle employees who request time off to vote when polls are open for early voting or where voting by mail or drop boxes is an option. Typically, state laws requiring an employer to provide time off to vote stipulate that the time off is available only to employees who do not have sufficient time outside of working hours to vote. Employers could argue that states and localities with flexible voting options allow employees to vote on weekends or other days when they are not scheduled to work, therefore eliminating the need to request voting leave on election days. Employers should consult with legal counsel prior to denying leave to an employee in these circumstances, as most state laws have not yet addressed this topic.
Another common 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. Which law does the employer have to comply with? Generally, employment laws apply in the state where the employee performs work. However, experts suggest that employers take a generous approach. 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 cast a negative light on an employer. Employers are encouraged to follow the state law that is most beneficial to the employee.
For clients with access to the Forms Library, check the “Voting Leave Laws by State” comparison chart in the Guardian HR Forms Library > Leaves of Absence > Voting & Election to ensure compliance. The folder includes other related documents such as voting leave policy, CA time off to vote poster, etc.
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