A Primer on Voting Leave Requirements: Are You Ready for the Mid-Term Elections?
Author: Matthew K. Johnson (Greenville)
Published Date: October 28, 2014
General elections are scheduled for Tuesday, November 4, 2014. This mid-term election will see all 435 seats in the U.S. House of Representatives and 33 of the 100 seats in the U.S. Senate up for grabs. In addition, numerous states will hold elections for governors, state legislators, and will determine the winners in other state and local races. Given the low approval ratings of the president and Congress, there may be higher than usual voter participation in these elections. As a result, employers may be faced with more issues related to requests for voting leave than in prior years. The following overview of the voting leave laws across the country will arm employers with a basic knowledge of voting leave rights in the various states and help employers prepare for the upcoming onslaught of leave requests.
States with No Voting Leave Law
Many states have no voting leave requirements. These include Connecticut, Idaho, Indiana, Maine, Michigan, Montana, New Hampshire, New Jersey, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia, Washington, and the District of Columbia. Some states have no specific voting leave law but do have related laws. For instance, Delaware law states that employers cannot “hinder” an employee’s right to vote. States like Louisiana, Florida, and Mississippi have laws stating that political activity is protected and would preclude retaliation for voting, generally speaking. North Dakota “encourages” but does not require employers to provide employees with time off to vote.
States with Unpaid Voting Leave Laws
A number of states require some amount of unpaid leave. Arkansas and Ohio generally require employers to provide a “reasonable” period of unpaid leave. Alabama, Georgia, and Massachusetts each require employers to provide employees a two-hour leave period for the purpose of voting. However, note that this requirement comes in slightly different forms. In Alabama the employee must simply give reasonable notice. In Georgia the employee must give notice and the employer must provide “necessary” time up to two hours. In Massachusetts the voting leave requirement only applies in manufacturing, mechanical, and mercantile operations and voting leave is only available in the first two hours that polls are open.
Wisconsin requires employers to provide employees three hours of unpaid leave, subject to advance notice. The most expansive period of leave is provided in Kentucky, which requires employers to provide employees with four hours of unpaid leave, subject to advance notice and the employer’s entitlement to specify the hours of leave.
States with Paid Voting Leave Laws
Paid leave for the purpose of voting is also required in a number of states. For example, Minnesota, Nevada, and Texas require that employers provide “reasonable” amounts of paid leave. In Nevada this is subject to the employee’s advance request. In Texas an employee is not eligible if polls are open during two consecutive non-working hours. Wyoming requires that one hour of paid leave be provided, not to include meal breaks, although the leave is not available if polls are open for three or more consecutive hours during an employee’s non-working hours.
Many states require up to two paid hours for voting purposes, including Alaska, California, Hawaii, Illinois, Kansas, Maryland, Nebraska, New Mexico, New York, Oklahoma, South Dakota,and Utah. California requires employers to post an election notice 10 days prior to the election. California’s law also requires employees to provide their employers with two days of notice before taking leave. Illinois and Nebraska also require employees to request leave in advance of elections. New Mexico’s two-hour paid leave is unavailable if an employee’s work day begins two hours after polls open or ends three hours before polls close. New York’s paid leave requirement is not available to employees who have four non-working hours to vote. New York requires that employers post a notice prior to election day, but also requires that employees request leave at least 2 days, and not more than 10 days, in advance. Oklahoma and Utah’s requirement is subject to advance request by the employee and is unavailable if polls are open three or more hours before or after an employee’s working hours.
A number of states also require up to three hours of paid voting leave, including Arizona, Colorado, Iowa, Missouri, Tennessee, and West Virginia. These states generally require that employees provide employers with advance notice of the need for leave, often in writing, as in the case of Iowa and West Virginia. Colorado’s statute is unique in that it requires up to three hours of leave, only two of which must be paid.
Matthew K. Johnson is a shareholder in the Greenville office and represents employers in all aspects of employment and labor law before state and federal agencies and in state and federal courts including, among others, matters under the Uniformed Services Employment and Reemployment Rights Act (USERRA), Title VII of the Civil Rights Act of 1964, Section 1981, the Age Discrimination in Employment Act of 1967 (ADEA), the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act...