Friday, October 21, 2016

Employee Voting Rights & a Cautionary Word About Political Talk in the Workplace

With the presidential and general election rapidly approaching, Minnesota – and all – employers need to be mindful of employees’ rights to reasonable voting leave under state laws. Election season, particularly polarizing presidential campaigns and elections, can also present some headaches for well-intended employers.

Minnesota employees have a right to paid time off to vote. State law gives employees the right “to be absent from work for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work.” Generally, an employer may not dock pay, personal leave, or vacation for voting leave. Indeed, if an employer “refuses, abridges, or interferes” with an employee’s right to voting leave, the employer is guilty of a misdemeanor. Minnesota’s law generally applies to all regularly scheduled elections, including a presidential nomination primary election (new for 2020).

Here are a few suggestions on managing employees’ voting leave rights with a minimum of disruption to your business. 

  • Advance Notice. The voting leave statute does not prohibit employers from requesting advance notice of absences for voting time. Employers might want to consider sending out a notice to employees stating that time off to vote must be arranged in advance in order to coordinate absences and minimize disruptions.
  • Employer Request to Vote on Non-Working Time. In theory, employers are not prohibited from requesting that employees vote on non-working time, but going this route can present problems for employers. Doing so might be interpreted as interfering with an employee’s voting leave rights. Thus, any such request should make very clear that it is not a requirement, and that there will be no repercussions from the employer for employees who choose to instead vote on paid working time.
  • Voting on Non-Working Time. Employers do not have to pay voting leave to employees who are not scheduled to work on election day or who actually vote outside of working hours.
  • Reasonable Time Away. The Minnesota statute does not contain particular time limitations (requiring only that employees be provided “the time necessary” to vote), so an employer may limit paid voting leave to a reasonable amount of time. What is reasonable will depend upon individual circumstances, such as how far away the polling location is from the work facility and whether the employee’s polling place is in a densely populated area that results in long lines, or a rural area with less wait time. If any part of an employee’s shift takes place when polling places are open, the employee probably has the right to paid voting leave.
  • Proof. Employers may require employees to account for their voting time and to show proof that they actually voted, as long as such requirements are not communicated in a way that would tend to discourage or interfere with use of voting leave. 
  • Notice to Employees. Employers are not obligated to notify employees of the right to voting leave. Communicating in advance with employees about voting leave and related policies, however, may not only help increase civic engagement, but might also minimize workday disruptions for employers.

Voting rights laws vary from state to state, so employers should make sure that they are familiar with the laws of each state in which they employ workers.

A Word About Political Speech in the Workplace

Perhaps even more so than with past presidential elections, the current campaign seems to be stirring up strong feelings all around. That phenomenon can present some difficulties for employers. As tempting as it may be for employers to simply impose a flat and absolute ban on all political discussion at work, that is not a valid option. Although the First Amendment freedom of speech under the U.S. Constitution does not apply to private employers and speech in their places of work, prohibiting all political talk at work could constitute a violation of the National Labor Relations Act (applicable to all employers, regardless of whether your workforce is represented by a union). A few states outside of Minnesota also have state laws that might be violated by a broad ban.

Employers may, however, restrict political communications in the workplace that is made in a discriminatory or harassing manner. For example, disrespectful political speech focusing on a candidates’ protected class status (such as races, gender, age, religion, etc.) may be banned by an employer.  Indeed, depending upon the nature and content of the speech, an employer may have a legal duty to do so, in order to ensure a discrimination and harassment free workplace. In the event of possible disruption in the workplace, such as a confrontation between fellow employees holding competing political views, an employer should focus on any improper behavior (yelling, threating, physical interaction, etc.), rather than the underlying political speech or beliefs. So, bottom line, employers are entitled to control and discipline unacceptable conduct at work, but the focus needs to be on improper actions, discrimination, or harassment – not on the content of any political speech.

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