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As unpredictable, surreal and crazy as this 2016 presidential campaign has been, companies that fail to stay up on voter rights’ laws can face their own Election Day headaches.

Whether employees decide to exercise their right to vote Nov. 8, employers’ and their human resources departments are expected to ensure their workers have the opportunity to vote, Business Journal reports.

Part of the challenge is that there is no standard, one-size-fits all rule for all states, so employers will want to make sure they are up-to-speed on their responsibilities. More than half of the states mandate companies to give workers who request it the time off to vote and some of those states require employees to get paid for that time. But there are other states that have no laws obligating that they give workers any time off to vote Election Day.

One best practice for employers located in states with no specific employee voting requirements is to afford two hours of paid time if their employees can’t get off to vote during normal work hours. To keep things simple, firms with locations in multiple states may adopt an employee-friendly general policy that ensures they are covered.

“In most states, employers can designate the time of day when employees can be absent to vote during the workday,” says Jay Starkman, founder and CEO of Engage PEO, an HR service provider. Starkman is a contributing writer for Business Journal.

“The employee is generally required to give advance notice of the need for leave, and employers can generally require proof of voting,” Starkman adds. But HR will want to be cognizant that whatever its policy, the firm does not engage in any activity that could be interpreted as infringing on employees’ rights. “All employers must be mindful to be neutral and consistent when granting time off to vote to avoid claims of discrimination or voter disenfranchisement,” Starkman writes.

Private employers are not obligated to the First Amendment when it comes to their employees in the work place, Christine Samsel and Hannah Caplan write for Law360. But employers will want to be careful to not prevent political discussion at work as employees do have rights under the National Labor Relations Act. Samsel is a shareholder with Denver-based law firm, Brownstein Hyatt, while Caplan is an associate at the firm. 

“Consider one employee telling others in the break room: ‘Hillary Clinton supports paid family leave and higher wages for women--we sure could use that here!’ This statement could constitute protected activity because it relates to terms of employment,” Samsel and Caplan write.

Employers, however, may need to take action under certain circumstances. “For example, statements like ‘I support Donald Trump--he’ll make it harder for [persons of a certain religion] to get into the country’ appropriately should be addressed by human resources,” Samsel and Caplan note. “Put another way, just because employees are quoting candidates does not render their speech protected.”

Election Day can get tricky especially with employers who have businesses in multiple states. In Colorado, workers are allowed to miss work for two hours to vote and must be paid. Employers are prohibited from any retaliation against an employee who leaves work to vote. In California, an employee who knows or believes that they will need time off from work has to inform their employers at least two working days prior to Election Day.

“California employers must also mark their calendars for 10 days before every statewide election, at which point they must post a conspicuous notice in the workplace advising employees of their rights to paid voting leave,” Samsel and Caplan write. “Additionally, employers may not discharge employees because of absences to serve as election officers on Election Day, although such time off need not be paid.”

Outside the race for president, 34 Senators and all 438 house of representative members will be up for re-election, as well as 12 governor and 5,917 state legislative seats, the Society for Human Resource Management notes. Some areas of concern for employers will be ballot measures in Arizona and Washington state where voters will decide yes or no on requiring employers to provide their workers up to 40 hours per year of earned paid sick, safe and family leave.

In Colorado, voters will decide on a universal, single-payer health care program. If passed, the program will be funded with a 3.33% and 6.67% payroll tax on all employees and employers, respectively. There would be a 10% tax on non-payroll income and employer health care requirements under the Affordable Care Act would end.

Last modified on Sunday, 23 October 2016
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