What Employers Need to Know During the Election Season

February 2, 2016

With the Iowa caucus yesterday, the 2016 presidential elect has officially kicked off. Of course, that may surprise you seeing as you’ve probably been so bombarded by political ads, debates, news, etc., over the last several months that it feels like we must be nearing the end instead of just getting started.

Looking at the Iowa Caucus

A lot of interesting things came out of the caucus last night – Donald Trump finished second behind Ted Cruz and barely beat Marco Rubio. On the Democratic side, Hilary Clinton and Bernie Sanders came just about as close to a tie as you can get without actually tying.

However, perhaps one of the most significant things last night showed us was that voter turnout was really high. On the Republican side, voter turnout was estimated to be around 182,000, breaking 2012’s record of 122,000. While the Democratic numbers aren’t in yet, voter turnout in big cities seems to show a similar trend.

In fact, according to Fox, about four in 10 Iowans who voted yesterday said that this was their first time caucusing.

The Voting Season Dilemmas

If this trend holds up throughout the rest of the election season, we can all give three cheers for democracy. However, in the business world, the election season is always a tricky time and the more involved employees get, the more complicated matters become.

Two big issues that employer’s must deal with during this time are:

  • How much control can I use to influence voters to my side?
  • What exactly am I required to do for leave?

While the answers to these questions are in large part determined at the state level, there are many generalizations we can examine to give us an idea of the answers.

Employers Influencing Employees Votes

Do you remember hearing about the letter Westgate Resorts CEO David Siegel sent to his employees in 2012?

If not, then here are a few points that came out in the letter as a refresher:

  • If Obama is elected, then taxes might be raised.
  • If taxes are raised, then Westgate will have to reduce the size of the company.
  • Another four years of Obama would mean less jobs and less benefits.
  • Vote how you wanted, but just keep that in mind.

If you own a business, and you have a political opinion, it seems like talking to your employees about your own opinions is a great way to influence votes with the power you already hold. In fact, while Siegel’s letter made a lot of waves in 2012, it was far from being the only such message that businesses were sending.

But is it legal?

Federal law says that no one can intimidate, threaten, or coerce another person in order to interfere “with the right of such other person to vote or to vote as he may choose.”

The question then becomes just where is the intimidation line?

Employers can send out letters and hold meeting discussing political topics. They can even state their own political opinions. In fact, in the landmark Supreme Court case of Citizens United, an employer’s right to hand out political information was specifically upheld. However, that does not mean an employer can do whatever they want.

You cannot force a worker to vote for who you want them to. If a court finds that you did intimidate, threaten, or coerce, then you will find yourself in some hot water. In other words, if you do want to share your political opinions with your employees, go ahead and do so. However, make sure you do it in a legally compliant way.

Retaliation After an Election

Now though, let’s say that the election is over, and you aren’t happy with the results. You want to do something about it.

After Obama won in 2012, a few anonymous business owners claimed to have fired workers because of the Affordable Health Care Act and its effect on small businesses. One such purported small business owner in Georgia, who the Huffington Post only knows as Stu, claimed that he had to cut the hours of many of his workers while also having to fire two fulltime employees. He made sure to note that the employees he fired were those he felt confident had voted for Obama.

Now doesn’t that count as intimidation?

Perhaps surprisingly, the answer is likely no – assuming it was after the vote and not a threat before the election. However, this is where state and local law can exist that helps protect employees.

A few states, California being one, as well as several cities, have enacted laws that add political affiliation to the list of protected classes. Other states have laws that protect an employee’s right to perform legal activities outside of work. Often, this means their right to smoke or drink is protected, but voting for their chosen candidate or platform can also be protected under these laws. Similarly, many unions add clauses to their labor agreements that say employees may not be retaliated against because of their political ideologies.

In the public sector, state and federal workers are sometimes protected because of free speech – since the government itself cannot restrict this.

What these laws covers varies from state to state or location to location. However, examples of rights these laws are intended to enforce include

  • The right to vote how the individual chooses.
  • The right to campaign for a candidate or issue.
  • The right to run for office.

In other words, before you go firing people because you don’t like how they voted, take a step back and check the laws that apply to you. Remember that there is more than just federal law to consider. Check your state law and the laws in your county and city. Look at any applicable labor agreements that might apply to you. And even consider your own internal policies.

Ask yourself if making employment decisions based off an individual’s political activities or affiliation is in the best interest of you and the company. And then figure out if it is even legal to do so.

Voting Leave Laws Across the Country

Even if you don’t have any interest in influencing your workers, you may have an issue to consider this election season.

Do you have to let them go vote during working hours?

Anyone in the legal field can tell you that the answer to almost any question is “it depends.”

This is no exception. However, I can say more specifically that the answer is probably if they wouldn’t have time to do so outside of working hours. Like many laws affecting the workplace, voter leave laws are determined on a state by state basis. What it will break down to, though, is that you will probably need to allow workers to go vote. However, how much time they can take and if it is paid or unpaid will vary greatly by state.

For an example of what a state law may dictate, let’s look at California’s law on this matter. In California, employees must be granted up to two hours of paid leave in order to go vote. However, unlike most states, allowing employees to vote is not the only thing the law requires.

California employers are also required to keep employees informed of their right to vote by posting a notification 10 days before any statewide election. This notice should be posted either somewhere in the workplace or in a place where employees will see it as they enter or exit the workplace.

There are some notable exceptions to the paid leave requirement, though. For example, an employee only has to be given paid leave when they do not have enough time to do it outside of working hours. In California, polls are open from 7am to 8pm. So if an employee’s normal work schedule would allow them to vote without having to take off work, then paid leave is not required.

Similarly, an employer does not have to allow an employee the right to vote whenever they want. The employer can require the employee to use their voting leave hours at the beginning or end of their shift. Expectant voters must give sufficient notice that they will be out voting. In other words, they cannot just show up to work two hours late on Election Day.

Other than the need to post notification, where California is unique, voting leave laws across the country are pretty similar to the above. In order to see where you stand on allowing your workers notice, you just need to check the state law to see how many hours you must give and whether those hours need to be paid or not.

You might also want to check what the state defines as sufficient time outside of working hours. For example, in New York, if an employee has four consecutive hours before they start working or after they leave in which the polls are open, then they have sufficient time to vote and an employer does not have to grant them paid leave to go to the polls during their working hours.

Final Thoughts

This year could turn out to have record breaking numbers in terms of voter participation. For a democratic society, that’s great news! But the more voters there are, the more likely that your workplace could be effected by absences, political opinions, and voting results.

In order to prepare, make sure you know the laws surrounding elections that might effect you and your workplace. Talk to a lawyer if you are unsure of whether a letter you want to send crosses lines or if you want to know just how much time you need to give an employee to go vote. After all, getting help to do the correct thing in the first place is much easier than having to get help to defend against potential legal missteps at a later date.




Ashley Shaw is an experienced Legal Writer with years of experience. After receiving her JD, she worked for years in a corporate environment writing on business and employment law topics

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