By Mark F. Kluger and William H. Healey
It is almost over! We are mercifully in the final days of what seems like the longest and most excruciating election season in history. There is, of course, an employment law component to the upcoming Election Day, as there is with every other important aspect of life. So the question for employers is: “Do we have to let employees vote?” As usual, the short answer is, “it depends.” Because there is no federal law that requires an employer to allow employees time off from work to vote, the answer depends on each states’ law.
There are thirty (30) states that require employers to allow employees time off to vote, some with pay and some without. Below we address the three (3) states in which we have offices. We will be glad to answer questions about any other state (citizens of Guam and American Samoa, by the way, may not vote in general elections for President).
Fuhgeddaboudit! Come on, we don’t even have a law that requires breaks during the work day. So the answer is “no,” an employer in New Jersey does not have to give employees time off from work to vote even if their shift times make it impossible for them to get to the polls without missing work.
The only New Jersey law that even touches on the subject can be found under the Election Laws in which there is a provision which states that an employer cannot threaten or intimidate an employee to vote for, or refrain from voting for, a specific candidate. Of course, the work around is easy: only give them time off to vote if you think they will vote for the candidate you support, otherwise, just keep them at work until the polls close (just kidding).
You talkin to me? New York law on this subject is more complex. Employers are required to provide employees with “a sufficient amount of leave time that when added together with available time outside of work that will allow them to get the polls.” “Sufficient time” means four (4) consecutive hours either before or after work during which the polls are open. If the employee does not have four (4) consecutive hours off while the polls are open, the employer is required to allow the employee a sufficient amount of time off from work to ensure the four (4) consecutive hours. Significantly, up to two (2) of those hours must be with pay.
So, if the polls open at 7:00 a.m. and the employee must be at work at 9:00 a.m., a New York employer must allow the employee to come to work at 11:00 a.m. without any loss of pay for those first two hours. If the polls close at 9:00 p.m. and the employee gets out of work at 5:00 pm, a New York employer has no obligation to give an employee any leave time to vote.
No later than ten (10) days before Election Day, a New York employer must conspicuously post a notice of employees’ rights under the Election law. Employees who want to take advantage of the time off to vote law must provide their employer with no less than two (2) days’ notice. An employer that violates the relevant provisions of the New York Election law can be sanctioned by a loss of their corporate charter.
Like New Jersey, Pennsylvania has no law that requires employers to provide time off from work to vote. It also has a similar law to New Jersey’s anti-intimidation law.
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Whether or not your state law requires employers to provide time off to vote, paid or unpaid, there is likely consensus on one thing: we will all be glad when this election is over!