Employee Voting Rights — Survey of the Law in 50 States

When the 2008 elections were approaching, I surveyed the laws in all 50 states concerning the voting rights of employees. With the mid-term elections a little more than three weeks away, it’s time for another review this subject. I know that some of you have been recently accessing the post I did back in 2008. The state laws remain basically the same, although there are a few changes. The purpose of this post is to make sure that you are up-to-speed on these laws in the state or states where you have facilities or employees.

I have tried to make sure that the summaries below are accurate. Since 50 state laws are involved, that’s a bit of a tough job. If you think I’m wrong about anything appearing in the summaries below, please do not hesitate to let me know immediately.

Most states require employers to provide time for employees to vote on election day. While these laws vary in each state, they generally require employers to give employees time off to vote if the polls aren’t open two or three hours outside of the employee’s regular shift. Some of these states require that employers pay employees for time off while they are voting. Some states require employees to request time off from their employers in advance. Some states have no law at all on this subject.

Many states also have laws that allow for absentee or early voting. Unfortunately, these laws (which are relatively new) aren’t yet coordinated with the laws allowing employees time off to vote (which are relatively old). If an employee requests time off to vote on election day when he could’ve voted early or by absentee ballot, it’s problematic (probably illegal) for an employer to deny the request.

This issue is more difficult if an employee requests to take time off to vote early, since the statutes permitting voting leave refer only to leave on election day. It seems to me that the best practice would nonetheless be allowing the employee to take time off to vote early in the same way you would if the employee had made the request for election day.

There are two reasons for my opinion on this. Every state’s public policy is to encourage voting in elections. If you deny an employee’s request to take time off to vote (even if there’s a technical basis for doing this given the specific language in your state statute), you could violate your state’s public policy. And even if you don’t, you probably don’t want to become the poster child for employers who make it difficult for their employees to vote. Voting is a hot button issue, and the media would likely give a lot of publicity to this kind of situation.

One other law that is present in several states says that employers can’t require or coerce an employee to vote for a certain candidate or to vote in a particular election. It’s okay to encourage employees to vote, but that encouragement must not be so vigorous that an employee is required to vote or perceives he’s required to vote by his employer.

1. Alabama – Employees are given “necessary” time off to vote, not to exceed one hour. The employee must give reasonable notice to get the time off. However, if the polls open at least two hours before the employee starts work and close at least one hour after the employee ends work, the employer doesn’t have to give the employee time off. The statute doesn’t specify if the time off is paid. (Ala. Code Section 17-1-5)

2. Alaska – An employer must allow an employee time off for voting unless the employee has two consecutive hours either before or after a regular work shift to vote. An employee doesn’t have to provide advance notice to the employer. This time off is paid. (Alaska Stat. Section 15.15.100)

3. Arizona – If polls aren’t open three consecutive hours outside the employee’s regular shift, the employee can have up to three hours to vote. Employees must give notice in advance of election day to be given this time off, and the employer may specify the time that the employee can take off. The leave is paid. (Ariz. Rev. Stat. Section 16-402)

4. Arkansas – An employer must schedule work hours so that an employee has a sufficient opportunity to vote. The employee doesn’t have to request the time off in advance. The statute doesn’t state whether the time off is paid or unpaid. (Ark. Code Ann. Section 7-1-102)

5. California – Employees are allowed up to two paid hours time off at the beginning or end of their regular working shift to vote. An employee must provide notice at least two working days in advance of the election if, on the third working day prior to the election, the employee knows or has reason to believe there will be a need for time off to vote. An employee will be excluded from the time off rules if there is sufficient non-working time to vote. Although the law requires time to be taken at the beginning or end of the work shift, the employer and employee can agree on another arrangement. Employers must post a conspicuous notice of employee voting rights ten days before every statewide election. (Cal. Election Code Sections 1400 and 1401)

6. Colorado – An employee may take up to two hours leave time to vote; however, the employee won’t be given leave if there are three or more non-working hours when the polls are open to vote. The employee must give notice of the need for leave prior to election day. The employer can specify the hours that it will give the employee off, but the hours must be at the beginning or end of the employee’s work shift if the employee requests it. The time off is paid. (Colo. Rev. Stat. Sections 1-7-102 and 31-10-603)

7. Connecticut – There is no state law regarding employee time off to vote.

8. Delaware – There is no state law regarding employee time off to vote.

9. Florida – There is no state law regarding employee time off to vote. There are, however, local ordinances that require employers to give employees time off to vote. Thus, Florida employers should check their city or town ordinances to see if employees have protection concerning the right to vote.

10. Georgia – If polls aren’t open two consecutive non-working hours, an employee is allowed up to two hours leave to vote. Put another way, employees aren’t entitled to leave if their work schedules begin at least two hours after the polls open or end at least two hours before they close. The employee must give reasonable notice for leave. The employer can specify when it will give the employee time off to vote. The statute doesn’t state whether this time off is paid or unpaid. (Ga.Code Ann. Section 21-2-404)

11. Hawaii – If polls aren’t open two consecutive hours outside an employee’s regular shift, the employee can take up to two hours to vote, excluding lunch and rest periods. The statute requires employers to pay employees for time off with proof that a vote is cast. The employer may deduct leave time from the employee’s wages if the employee fails to vote and the employer can verify the failure to vote. (Haw. Rev. Stat. Section 11-95)

12. Idaho – There is no state law regarding employee time off to vote.

13. Illinois – Employees are allowed up to two hours paid time off to vote. An employee must apply for leave prior to election day. The employer must permit a two-hour absence from work if the employee’s working hours begin less than two hours after polls open and less than two hours before polls close. (10 Ill. Comp. Stat. Sections 5/7-42 and 10 Ill. Comp. Stat. 5/17-15)

14. Indiana – There is no state law regarding employee time off to vote.

15. Iowa – An employee can have up to three hours to vote if the polls aren’t open three consecutive hours outside the employee’s regular shift. The employee must apply individually and in writing for leave prior to election day. The time off is paid. The employer may specify the time off that it will give to the employee. (Iowa Code Section 49.109)

16. Kansas – Employees are allowed up to two hours paid time off to vote if the polls aren’t open outside an employee’s work shift. If the polls are open before or after an employee’s work shift for fewer than two consecutive hours, then the employee is only entitled to an amount of time off that, when added to the time that the polls are open before or after work, totals two consecutive hours. The employer can specify the time off that it will give an employee. However, such time can’t include any regular meal breaks. (Kan. Stat. Ann. Section 25-418)

17. Kentucky– Employees are allowed up to four hours unpaid time off to vote. The statute requires a reasonable amount of leave time but states that it can’t be less than four hours. The employee must give the employer notice prior to election day. The employer may specify the time off given to the employee. Also, it should be noted that Kentucky statutes allow an employer to discipline an employee if time off to vote is taken but no vote is cast. (Ky. Rev. Stat. Ann Section 118.035; Ky. Const. Section 148)

18. Louisiana – There is no state law regarding employee time off to vote, although two statutes, La. R. S. 23:961 and La. R. S. 23:962, prohibiting employers from taking adverse action against employees for engaging in political activity are interpreted to mean that employers must treat requests for time off to vote the same as requests for time off for all other reasons.

19. Maine – There is no state law regarding employee time off to vote.

20. Maryland – An employee is allowed up to two hours to vote if the polls aren’t open two consecutive hours outside the employee’s regular shift. The time off is paid with proof that the employee voted. (Md. Code Ann. Section 10-315)

20. Maryland – An employee is allowed up to two hours to vote if the polls aren’t open two consecutive hours outside the employee’s regular shift. The time off is paid with proof that the employee voted. (Md. Code Ann. Section 10-315)

21. Massachusetts – Employees in manufacturing, mechanical, or mercantile establishments are allowed time off during the first two hours after the polls have opened only if time off has been requested in advance. The statute doesn’t state whether the time off is paid or unpaid. (Mass. Gen. Laws Chapter 149, Section 178)

22. Michigan – There is no state law regarding employee time off to vote.

23. Minnesota – An employee is allowed time to be absent from work for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work on the day of the election. This time off is paid. (Minn. Stat. Section 204C.04)

24. Mississippi – There is no state law regarding employee time off to vote, although there is a non-coercion statute, Miss. Code Ann. Section 23-15-871, that is interpreted to mean not allowing employees time off to vote would be unlawful coercion.

25. Missouri – An employee is given up to three hours leave to vote, unless the employee has three consecutive non-working hours in which to vote while polls are open. The employee must request leave prior to election day, and the employer may designate the time that the employee is given off from work. This time off is paid. (Mo. Rev. Stat. Section 115.639)

26. Montana – There is no state law regarding employee time off to vote.

27. Nebraska – If polls aren’t open two consecutive hours outside an employee’s regular shift, the employee is allowed up to two hours to vote. The employee must request leave prior to election day, and the employer may specify the time of day that the employee may take time off to vote. This leave is paid. (Neb. Rev. Stat. Section 32-922)

28. Nevada – If polls aren’t open a “sufficient” amount of time during an employee’s non-working hours, the employee is allowed anywhere from one to three hours to vote. “Sufficient” time depends on the distance between the employer and the employee’s polling site. The employee must make a request prior to election day for the time off, and the employer may specify the time of day the employee may take to vote. This leave is paid. (Nev. Rev. Stat. Section 293.463)

29. New Hampshire – There is no state law regarding employee time off to vote.

30. New Jersey – There is no state law regarding employee time off to vote.

31. New Mexico – Employees may have up to two hours of leave to vote, unless their work day begins more than two hours after the polls open or ends more than three hours before the polls close. The employer may designate the time of day when the employee can take the leave. The statute doesn’t state whether this time off is paid, but the employer may not impose a “penalty” on the employee for taking the time off. It should be noted that the New Mexico Attorney General has taken the position for years that the time off is paid, and some lower courts have agreed. (N.M. Stat. Ann. Section 1-12-42)

32. New York – An employee who is registered to vote is allowed “sufficient time” to vote if polls aren’t open four consecutive hours outside the employee’s regular shift. The employee must notify the employer of the need for time off at least two but not more than ten working days prior to the election, and the employer may specify whether the employee takes time off at the beginning or end of the shift. Employers must post a conspicuous notice of employee rights at least ten days before election day. If an employee has four consecutive hours either before the opening of the polls and the beginning of a working shift, or between the end of a working shift and the closing of the polls, the employee isn’t entitled to any paid time. If there aren’t four consecutive hours before or after the regular working shift, the employee is entitled to up to two hours paid time off at the beginning or end of the shift. (N.Y. Election Law Sections 3-110 and 17-118)

33. North Carolina – There is no state law regarding employee time off to vote.

34. North Dakota – State law encourages employers to provide time off to vote when the employee’s regular work schedule conflicts with voting while the polls are open. (N.D. Cent. Code Section 16.1-01-02.1)

35. Ohio – Employees may take a “reasonable amount of time” to vote on election day. The statute doesn’t say whether the time off is paid or unpaid. (Ohio Rev. Code Ann. Section 3599.06)

36. Oklahoma – Employees who are registered to vote must be allowed up to two hours time off to vote on election day during a time when the polls are open. An employee must receive “sufficient time” to vote if more than two hours are required to vote. The employee must notify the employer the day before the election if time off to vote is needed, and the employer may specify what time the employee is given to take time off. The time off is paid with proof of voting. An employee is excluded if the work day begins three hours or more after the polls open or ends three hours or more before the polls close. The employer may change the regular work schedule so that an employee will have the required three consecutive non-working hours off to vote. The employer must notify the employee which hours can be used to vote. (Okla. Stat. Ann. Title 26, Chapter 7-101)

37. Oregon – There is no state law regarding employee time off to vote.

38. Pennsylvania – There is no state law regarding employee time off to vote.

39. Rhode Island – There is no state law regarding employee time off to vote.

40. South Carolina – There is no state law regarding employee time off to vote.

41. South Dakota – An employee is allowed to take time off to vote if polls aren’t open two consecutive hours outside the employee’s regular shift. The employer may specify the time that the employee is given off to vote. This time off is paid. (S.D. Codified Laws Section 12-3-5)

42. Tennessee – An employee is given a reasonable period of time off to vote, not to exceed three hours, unless work is begun three or more hours after the polls open or ends three or more hours before the polls close. The employee must give notice of the need for time off to vote at least before 12:00 p.m. on the day prior to the election. The employer may specify the time off that the employee is given to vote. This time off is paid. (Tenn. Code Ann. Section 2-1-106)

43. Texas – The employee is allowed reasonable time off to vote if the polls aren’t open two consecutive hours outside the employee’s regular shift. This time off is paid. (Tex. Elec. Code Ann. Section 276.004)

44. Utah – An employee may take up to two hours of leave to vote, unless there are three or more non-working hours in which to vote. The employee must request leave prior to election day. The employer may specify the time off that the employee is given to vote. However, the employer must grant the employee’s request for leave at the beginning or end of the regular work shift. The time off is paid. (Utah Code Ann. Section 20A-3-103)

45. Vermont – There is no state law regarding employee time off to vote.

46. Virginia – There is no state law regarding employee time off to vote.

47. Washington – Employers must ensure that employees have time to vote. If an employee’s schedule doesn’t provide at least two hours before or after work when the polls are open, the employee must be given “reasonable time up to two hours” in which to vote, not including meal or rest breaks. However, if an employee’s work schedule for election day is announced sufficiently in advance so that the employee may obtain an absentee ballot, the provisions of the statute don’t apply. This leave is paid. (Wash. Rev. Code Ann. Section 49.28.120)

48. West Virginia – Employees are provided up to three hours leave if a written request for time off is made at least three days prior to election day. If the employee works in essential government, health, hospital, transportation, communication services, and in production, manufacturing and processing works requiring continuity in operation. The employer may arrange and schedule a calendar of time off for all employees for voting so as to avoid impairment or disruption of essential services and operations. This schedule must be arranged to provide ample and convenient time and opportunity for an employee to vote. The time off is paid unless the employee has three or more non-working hours in which to vote, and the employee fails to use those non-working hours to vote. (W.Va. Code Ann. Section 3-1-42)

49. Wisconsin – Employees are allowed up to three hours to vote if the request for time off is made prior to election day. The employer may specify the time to be taken by the employee to vote. This time off is unpaid. (Wis. Stat. Ann. Section 6.76)

50. Wyoming – Employees may take one hour to vote, excluding meal times. An employee won’t be given the time off if there are three or more consecutive non-working hours in which to vote. The statute doesn’t require the employee to give advance notice of time off. It does permit the employer to specify the time off that it will give to an employee to vote. This time off is paid. (Wyo. Stat. Ann. Section 22-2-111)

50. Wyoming – Employees may take one hour to vote, excluding meal times. An employee won’t be given the time off if there are three or more consecutive non-working hours in which to vote. The statute doesn’t require the employee to give advance notice of time off. It does permit the employer to specify the time off that it will give to an employee to vote. This time off is paid. (Wyo. Stat. Ann. Section 22-2-111)

Hopefully, the above list will be helpful to you, particularly if you have operations in multiple states. If you have questions about any of these statutes, please let me know.

Two more things. First, five states have laws that apply to employees who serve as election officials. Check out another post to see whether your state is one of the five, and if so, what is required of employers who have such employee

Second, below are some practical tips if there’s a voting crush where your employees vote, if there’s some kind of malfunction with voting machines which makes the wait to vote longer than it ordinarily would be, or if there is some other legitimate reason for an employee taking more time to vote than anticipated. Part of HR’s job is to prevent voting problems from entering your workplace.

If there are voting problems at the polls, you could find it challenging to comply with the law in your state and keep your plant or facility up and running on November 2. Be ready for a large number of voting requests from your employees. If you haven’t done any planning for this possibility, it’s not too late. As part of the planning, I suggest that you ask the following questions:

1. What does the law in the state or states in which our company does business require?

2. If your state doesn’t have a law, should you still give employees a reasonable amount of time off to vote? (Be careful here. While making this gesture sounds good, consider the precedent you could be setting and its impact on other leave policies. Get legal advice.)

3. If you’re in a state that requires a certain amount of paid time off to vote, what if an employee has to stand in line for a longer period of time than allowed by the state statute? Do you have to pay the employee for the extra time it took to vote? (Probably not, but you may want to anyway. Again, be careful about setting precedent. Get legal advice.)

4. If you’re in a state that says an employee isn’t entitled to time off during working hours when the polls are open two or three hours before the employee is scheduled to begin work, what if the employee goes to vote during those two or three hours but has to stand in line so long that he/she can’t get to work on time? If the leave is paid, do you pay the employee for the extra time in line? If the leave isn’t paid, do you discipline the employee for being tardy or count the extra time as PTO or vacation? (Same considerations and caveats as those stated above.)

5. What if an employee doesn’t give the advance notice required by your state statute? Do you bend a little and let the employee have time off to vote anyway? (Same considerations and caveats as those stated above.)

The above isn’t intended to be a complete list of questions. It wouldn’t be possible to think of all the questions that will arise on election day in the workplace. The above list will hopefully get you thinking and planning.

No company or organization wants to become the poster child for employers who make it difficult for their employees to vote. I suspect the last thing you want is a TV crew at your front door, demanding to know why you won’t let your employees vote. Even if your state doesn’t have a statute on this subject, it’s probably fair to say that every state’s public policy encourages its citizens to vote. So, taking some time to think about how you’ll handle November 2 will make November 2 much easier to handle.

The following tips (some of which are repetitive) may be of help: (1) Be reasonable, at least within the parameters of any applicable law, but beware of unintended precedents. (2) Communicate to your supervisors and managers that there could be some voting questions asked of them on November 2, that they shouldn’t give any knee-jerk reactions, and that they should coordinate all responses with HR. (3) Be consistent. (4) Get legal advice. (5) Remember that legal maxim, “No good deed goes unpunished.”

And good luck.

1. 

   Dan Schwartz says:

   October 11, 2010 at 9:00 am

   Connecticut law, it should be noted, does have a law that prohibits employers from influencing employee’s votes or disciplining them because of their particular vote. Conn. Gen. Stat. 9-365.
2. 

   John Phillips says:

   October 11, 2010 at 10:20 am

   Dan,

   Thanks for updating us on Connecticut law. As noted in my post, several states have the same kind of statute as Connecticut.

   I don’t know of a situation like this, but I’ve wondered if, even without a statute, it would be a violation of public policy for an employer to influence an employee’s vote or discipline an employee for voting or not voting a certin way.

   In any event, this is an important point, and I appreciate your underscoring it.

   John
3. 

   Darrel says:

   October 29, 2010 at 10:52 am

   The state of Washington now has voting by mail for everyone so no one needs time off to vote. We fill out the ballots in the comfort of our homes and drop them in the mail.
4. 

   John Phillips says:

   October 29, 2010 at 11:26 am

   Darrel,

   Thanks for your comment.

   Washington state does allow voting by mail, and I’m sure many of your citizens take advantage of this opportunity. However, Washington does not require its citizens to vote by mail, and I don’t think an employer can require its employees to vote by mail. So if you have employees who want to go to the polls and vote on November 2, the law in Washington as outlined in this post would apply.

   If you have information that says I’m wrong about this, please share it with me and other blog readers. Thanks.

   John