With the election less than two weeks away, employers may receive employee requests for time off to vote. Some employers might wish to be proactive by affirmatively promoting voting and offering time off but require employees to schedule the time to ensure work coverage. This raises two distinct issues in the employment arena. First, must employers grant time off to vote? Second, must the employee be paid for the time used to travel to/from the polling place and to vote?

While there is no federal law requiring employers to provide time off to vote, 29 states and the District of Columbia have such a mandate, and many other states impose penalties on employers that hinder an employee’s exercise of their right to vote. Employers whose employees are governed by a collective bargaining agreement should consult that agreement to determine what rights employees might have to time off to vote and what if any notice or proof of voting or attempting to vote might be required of employees requesting time off for that purpose. You can contact RRD for information regarding the laws applicable to you.

In the states where RRD has offices, the following laws apply:

Delaware:
There is no law requiring an employer to give a specific amount of time off to vote, but under Del. Code Ann., tit. 15, § 5162 a Delaware employer may not “hinder, control, coerce, or intimidate or attempt to hinder, control, coerce, or intimidate any qualified elector of Delaware from or in the exercise of the elector’s right to vote at any general, special or municipal election held under the laws of the state by means of bribery or by threats of depriving such elector of employment or occupation, absolutely or contingently, directly or indirectly.”

Thus, if an employer takes any adverse employment action against an employee or threatens to do so because the employee takes time off to vote, that employer will have violated this law which could subject the employer to a suit and damages of $500. Where the polls are open during non-work hours for sufficient time for an employee to vote during non-work hours, the question of “hinderance” or “deprivation” normally will not arise if the employer does not grant time off during work hours to vote.

Employers are better advised to permit the time off and pay or not pay wages as required by wage laws. Not paying a non-exempt employee for the time taken would not be an adverse action, but federal law would require exempt employees to be paid.

New Jersey:
New Jersey law is similar to Delaware. Per N.J. Stat. Ann. §§ 19:34-27, 19:34-28, 19:34-31: no period of leave is required, but an employer cannot make use of, or threaten to make use of, any force, violence or restraint, or inflict or threaten to inflict, by himself or by any other person, any injury, damage, harm or loss against any person in his employ, or in any manner to practice intimidation upon or against any person, in order to induce or compel such person to vote or refrain from voting at any election or because such employee has voted or refrained from voting. Violation of this statute is a misdemeanor, and any corporation violating it shall forfeit its charter.

Pennsylvania:
Similar to Delaware and New Jersey, Pennsylvania does not provide for any period of leave. It is unlawful, however, for a person to use force, violence, restraint, or to inflict or threaten to inflict injury, damage, harm, or loss on a person to induce or compel such person to vote or refrain from voting. See 25 Pa. Cons. Stat. § 3547.

Maryland:
Per Md. Code Ann., Elec. Law § 10-315, unless an employee has two continuous hours of off-duty time while the polls are open, an employer must permit an employee who claims to be a registered voter up to two hours absence from work on Election Day to cast a ballot. An employee is required to furnish proof of voting or attempted voting. The employer must pay all wages to which the employee is entitled to for that two-hour absence.

New York:
A registered voter who does not have sufficient time outside of working hours to vote may, without loss of pay for up to two hours, take so much time as will (when added to voting time outside of working hours) enable him/her to vote. Employers must pay an employee for up to two hours of voting time unless the employee has four consecutive hours either between the opening of the polls and the beginning of the work shift or between the end of the work shift and the closing of the polls. Employees must notify the employer of the requested absence at least two days, but not more than ten days in advance of Election Day. At least ten working days before every election, employers must conspicuously post a notice setting forth these provisions, and that notice must be posted until the close of the polls on Election Day. See N.Y. Elec. Law §§ 3-110, 17- 118.

If you have questions or need additional information, please contact Robert W. Small at rsmall@regerlaw.com or call 215-495-6541 or contact any attorney in the Reger Rizzo & Darnall Employment or Corporate & Business Services practice groups.