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Employers Must Be Mindful of Voting Leave Rights on Election Day

With Election Day just a week away(!), it’s important that employers familiarize themselves with their employees’ rights to take leave to vote.  While there is no Federal law granting employees the right to voting leave, at least half the states provide this right in some form.

For example, all New York employers must provide up to two hours of paid voting leave to employees who (1) are registered voters, (2) do not have sufficient time outside working hours to vote, and (3) give their employer the required notice. In order to have “sufficient time” to vote outside of working hours, an employee must have four consecutive hours between the opening of the polls and the beginning of his or her work shift or the end of his or her work shift and the closing of the polls.  In New York, polls are open between 6:00 a.m. EST and 9:00 p.m. EST.  The employer may designate whether the employee takes voting leave at the beginning or end of the work day, or may agree with the employee to another time (such as during a lunch break or a project lull).  Employees may take off as much time as is necessary to vote on Election Day, but are only entitled to two hours of paid leave.  However, the right to voting leave is not automatic, as employees must provide their employers with notice of not more than 10 and not less than 2 working days (by this Friday, November 4) before Election Day that they need leave to vote.  At the same time, New York employers are required to post a notice about the law beginning 10 days before Election Day and continuing until the polls close – so for those who haven’t, they should do so ASAP.

Meanwhile, on the left coast, California has a similar law that provides for up to two hours of paid voting leave, but which defines “sufficient time” for voting outside of working hours differently – that is, the employee must have enough time off from work to be able to vote.  The employer is only required to provide leave at the beginning or end of a work shift (whichever leaves the most time to vote and least time away from work), although the employer and employee may agree to another time (such as during a lunch break or a project lull).  Employees may take off as much time as is necessary to vote on Election Day, but like New York, no more than two hours is required to be paid.  In California, polls are open between 7:00 a.m. PST and 8:00 p.m. PST.  The California law also has a notice requirement similar to New York’s law, which requires employees to inform their employers at least two working days  before Election Day (again, by this Friday, November 4) if they know or have reason to believe they will need time off to vote. In addition, employers are required to post a notice of the California voting leave law in the workplace.

As our last example, in Massachusetts, employers must provide unpaid voting leave during the two hours after the opening of the polls to employees in manufacturing, mechanical or mercantile establishments who (1) are eligible to vote and (2) request the leave.  Although Massachusetts law does not specify the timing or type of notice, it appears that the employee can make the request at any time including the day of the election.

Regardless of the states in which employers operate, they should identify all employee voting leave requirements and take steps as soon as possible to come into compliance.

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Natalie C. Groot is a Mintz attorney who litigates employment disputes on a wide variety of employment and labor matters. Natalie's litigation practice includes non-competition and non-solicitation agreements; discrimination, sexual harassment, and retaliation claims; and wage and hour compliance matters.