Employers' Voting Leave Obligations: Now is the Time to Know!

Publications

May, 2008

The political setting has created a backdrop for a potential record numbers of voters this fall. As many of you know, lines stretched for blocks during caucuses this year. The issues are hotly contested and some of the races appear close. The bottom line is that employers may have record numbers of employees clamoring to take time to vote on Election Day this fall. Therefore, it is important to take a moment now to review employment policies and make sure employers understand their obligations under the relevant voting leave laws. Minnesota law provides as follows:

Subdivision 1. Right to be absent. Every employee who is eligible to vote in an election has the right to be absent from work for the purpose of voting during the morning of the day of that election without penalty or deduction from salary or wages because of the absence. An employer or other person may not directly or indirectly refuse, abridge or interfere with this right or any other election right of an employee.

Subdivision 2. Elections covered. For the purpose of this section, "election" means a regularly scheduled state primary or general election, an election to fill a vacancy in the office of the United States senator or United States representative, or an election to fill a vacancy in the office of state senator state representative.

Subdivision 3. Penalty. A person who violates this section is guilty of a misdemeanor, and the county attorney shall prosecute the violation.

Minnesota Statute Section 204C.04. Simply put, the statute requires employers to give employees paid time off the morning of an election to vote. If employers fail to do so, or somehow interfere with that right, they may be guilty of a misdemeanor. Employers have been given little guidance as to how these rights fit into today's working world.

The statute was likely intended to provide a mechanism for employees to vote on the way to work, thus promoting civic duty while providing as little disruption in the workplace as possible. However, in our present economy, many employers manage varied work schedules, and employees work all hours of the day and evening. Some employees do not even report to the workplace. Therefore, the statute (which is all the advice the legislature has provided employers to date on this issue) does not apply to many of our workplaces.

What the statute does not say is perhaps as important as what it does say. The statute does not address the "nontraditional" work hours that permeate our society. Since the law is silent on this issue, employers do not appear required to pay employees who are not scheduled to work the morning of Election Day. In addition, the statute similarly does not address whether employers may schedule voting time. Therefore, an employer whose operation could be seriously hampered by having too many employees out on the morning of Election Day may wish to work with employees to set up a voting schedule. Employers working with this type of scheduling must take care to provide employees with sufficient time to reach the polls to vote, and they must not otherwise "interfere" with employees' voting rights. Scheduling may be even more important to minimize abuse of voting leave, considering the law contains no limitation on the number of paid hours employees may have off to vote on Election Day.

Another way to handle the ambiguity of the law is to encourage employees to take time to vote outside of work hours. Clearly many employees are able to vote either after or before their scheduled work hours, and they may be encouraged to do so. Many employment policies state that employees should vote during non-work hours if possible, but instruct employees to approach a supervisor regarding their rights to vote during work hours if necessary. Employers with these policies must be careful to not cross the line by "interfering" with the employee's right to take time off to vote. Therefore, supervisors should be thoroughly trained regarding these obligations.

In summary, the legislature has required employers to provide voting rights to all employees, although it has offered precious little in the way of guidance and parameters. Employers may have some options to manage Election Day issues, but should make their preparations early to draft policies and complete training. If you have any questions about how this voting leave statute applies to your workplace, and how you might most efficiently operate on Election Day within the constraints of the law, contact your Henningson & Snoxell corporate attorney for advice.