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Employers must allow employees time off to vote
September 22, 2004
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Riverwoods, Ill. -- Voting is more than a personal civic duty, according to CCH Inc., a provider of employment law information, services and software. In more than half of the United States, voting takes legal precedence over work, and employers must allow employees time off to cast their ballots.

Employers in many states risk fines or even jail sentences for interfering with employees' right to exercise their franchise. In other states, however, the law offers no special protection or incentive for someone who takes time out of the workday to vote.

Typically, time-off-to-vote laws require that employees who are registered voters be given time off from work -- usually up to two or three hours -- in which to visit the polls.

"In many cases, however, time off is only guaranteed if the employee does not have sufficient time outside of working hours to cast a ballot," explained CCH Labor Law Analyst Ronald Miller, J.D.

States Strike a Balance

Laws governing time off to vote can be found in 30 states.  While federal law protects a citizen's right to vote, it is individual state law that arbitrates between that right and the rights of employers to discipline workers or withhold pay for time not worked.  Many of these rules are trying to strike a balance between the interests of employee and employer.

In 20 states, employees must be paid for time spent voting: employers are prohibited from penalizing an employee or making deductions from wages for at least part of the time the employee is authorized to be absent from work to cast a vote. Five states -- Hawaii, Maryland, Missouri, Oklahoma and Wyoming -- spell out in their statute books that workers will be paid for their time off only if they actually vote.  In Maryland, employees must establish that they either voted or attempted to vote.

Seventeen states require employees to give advance notice of their intention to take time off. Iowa and West Virginia add the requirement that the notification be in writing. Employers are allowed to specify the hours to be taken for voting in 20 states.

Range of Penalties

"The penalties for firms that violate time-off-to-vote laws range from trivial to a corporate death sentence," said Miller. The highest fines are authorized in Arizona, Kansas and Missouri, where an individual employer may be fined $2,500. Arizona further provides for corporations to be assessed up to $20,000. Twelve states add possible jail time, in some cases up to a year, to monetary penalties. In New York and Colorado, businesses can forfeit their corporate charters if found in violation.

On the other end of the scale is Arkansas, where failure to give an employee an opportunity to vote -- without pay -- is punishable by a fine as low as $25.

Laws requiring payment for time off to vote were approved in 1952 by the U.S. Supreme Court in a pair of decisions involving Missouri and California laws: Day-Brite Lighting, Inc. v. Missouri and Tide Water Associated Oil Co. v. Robinson. They were upheld as a proper exercise of the police power of the state.

In addition to the U.S. states listed here, Puerto Rico provides that any day a general election, a referendum of general interest or a plebiscite is held is a legal holiday, and employees must be allowed to vote. General elections also are considered legal holidays within the Virgin Islands, and employees who give prior notice are entitled to two hours off from work to vote, without loss of pay.

Twenty states and the District of Columbia do not have time-off-to-vote laws. Those states are: Alabama, Connecticut, Delaware, Florida, Idaho, Indiana, Louisiana, Maine, Michigan, Mississippi, Montana, New Hampshire, New Jersey, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, Vermont and Virginia. While Mississippi law does not specifically require time off to vote, employers cannot increase or decrease an employee's wages or salary based on voting or nonvoting for any particular candidate(s).

A table summarizing state laws can be found at http://cch.com/vote2004.

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