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Legal Alert

Election Day—Top Concerns Employers Face as November 3rd Approaches

October 27, 2020

With Election Day approaching quickly, the below overview of the law is provided to help address the top three concerns facing employers: time off for voting, time off for election-related activities, and an employee's right to discuss politics at work.

1. Are employees entitled to time off from work to vote?

Federal law does not require this, but some states do have laws entitling employees time off to vote. In particular, Minnesota, Wisconsin, Iowa, North Dakota, and South Dakota each have different laws for employers to follow, presented below:

Minnesota

  • Time Off to Vote: On Election Day, employees have a right to be absent from work for the time necessary to go to the employee's polling place, cast a ballot, and return to work.
  • Notice Requirements: Employees do not have to provide advance notice of their intent to take voting leave. They can just let their employer know on Election Day that they need to leave work to vote. Employers can ask that employees coordinate their absences to minimize workplace disruptions.
  • Pay: Voting leave is paid. An employer cannot deduct from an employee's pay because of voting leave.

Wisconsin

  • Time Off to Vote: Employees have up to three hours of leave while the polls are open.
  • Notice Requirements: Employees must provide notice of the need for leave before Election Day. Employers may specify when the leave may be taken on Election Day.
  • Pay: Voting leave is unpaid. An employer may deduct from employee's pay the time taken off to vote.

Iowa

  • Time Off to Vote: Employees may take voting leave for the amount of time necessary to have a total of three consecutive hours of non-working time to vote while the polls are open.
  • Notice Requirements: Employees must provide written notice of the need for leave before Election Day.
  • Pay: Voting leave is paid. An employer cannot deduct from an employee's pay because of voting leave.

South Dakota

  • Time Off to Vote: Employees have up to two hours of leave to vote, but only if the employee does not have two consecutive hours to vote outside of working hours.
  • Notice Requirements: Employees do not have to provide advance notice of their intent to take voting leave but an employer may specify the hours when employees may be absent to vote.
  • Pay: Voting leave is paid. An employer cannot deduct from an employee's pay because of voting leave.

North Dakota

  • Time Off to Vote: Encourages but does not require employers to provide employees leave to vote if their regular schedule conflicts with polling hours.
  • Notice Requirements: N/A
  • Pay: N/A

2. Are employees entitled to time off to serve as poll workers?

An employee's right to leave for election-related activities also depends on state law. Both Minnesota and Wisconsin law provide leave for election officials:

  • Minnesota: Election judges are entitled to partially-paid leave on Election Day, but at least 20 days written notice is required. The employee's notice needs to include the election office's certification stating the hours the employee will serve as an election judge and how much the employee will be paid per hour. The employer may then deduct this amount from the employee's pay. Employers can limit this leave to no more than 20 percent of the workforce at any single worksite.
  • Wisconsin: Election officials are entitled to a 24-hour period of unpaid leave, if they provide their employers at least 7 days' notice.
  • Iowa, South Dakota, and North Dakota: These states do not provide leave for poll workers.

3. Does an employee have the right to discuss politics at work?

Private employees do not have a First Amendment right to free speech in the workplace. So the First Amendment does not require an employer to permit employees to express their political opinions at work. But before reacting to an employee's political opinion, an employer should consider whether there is another law that may protect the employee.

  • National Labor Relations Act: The National Labor Relations Act protects employees, even non-union employees, who engage in "concerted activity for mutual aid or protection." Political speech may be protected if it is related to employees' working conditions.
  • Anti-Discrimination Laws: An employee's political opinion may be tied to characteristics (i.e. race, sex, disability, or age) protected under anti-discrimination laws.
  • Unlawful Workplace Conduct: Political speech may also be protected if it relates to possible unlawful conduct in the workplace.

Keep in mind that an employee does not have the right to express themselves in a way that is offensive to other employees in violation of an employer's anti-harassment policy.

We Can Help

Please contact Maslon's Labor & Employment Group if you have questions related to voting leave rights or political speech in the workplace.

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