Remember the Rules for Employee Time Off to Vote

Although this is not a presidential election year, interest in the upcoming mid-term election seems to be running high.  Therefore, it is a good idea to review the legal requirements for Minnesota employers to give their employees time off to vote.

The law in question, Minnesota Statute §204C.04 provides:

“Every employee who is eligible to vote in an election has 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 on the day of that election, without penalty or deduction from salary or wages because of the absence. An employer or other person may not directly or indirectly refuse, abridge, or interfere with this right or any other election right of an employee.”

Can I Ask Employees to Take Off at Specified Times?

Employers may ask that their employees give notice of their intention to be absent, and also may ask them to schedule their absences so as not to impair production.  However, this statutory right to vote may not be denied so if the employees are not inclined to honor these requests, there probably is little that the employer can do.

Bear in mind that the statute only permits the employee to be gone for the purpose of voting and going to and from the voting place.  It is not a license to take an entire morning or afternoon off or to do some errands along the way.  Make sure your employees understand this ahead of time.

Can an Employee Just Punch Out Early to Vote and Go Home?

What happens if an employee wants to work most of the day and then take off early to vote and go home?  Minnesota courts have not ruled on this but the plain language of the statute seems to say that an employer need not pay the employee in this instance.  The statute states “Every employee who is eligible to vote in an election has the right to be absent from work for the time necessary to appear at the employee’s polling place, case a ballot, and return to work on the day of that election, without penalty or deduction from salary or wages because of the absence.” (Emphasis supplied). This seems to say that the employee must return to work in order to be eligible for the statutory protection.

On the other hand, prior to 2010, the statute required that employees be permitted time off to vote for two hours “during the morning of the…election.”  It could be argued that the legislature amended the law for the precise reason of not limiting voting-related absences just to the morning hours.  This amendment certainly benefitted Minnesota employers who no longer faced the crunch of all employees being gone in the morning to vote.

Others might suggest, however, that while this might be true, the plain language of the statute still requires that regardless of when employees choose to vote, they still have to return afterward.  Had the legislature intended that employees be allowed simply to leave work early to vote, they would have said so explicitly in the statute.

The upshot here is that while it is not perfectly clear, the law seems to say that while employees who return to work after voting must be paid, employees who leave to vote and do not return by the end of their shift need not  be compensated.  It is then up to each employer to determine for themselves whether withholding pay under these circumstances is fair or perhaps even counter-productive since it will probably influence most everyone to simply take off in the morning hours to vote.

Can I Require That Vacation or PTO Be Used?

What does “without penalty or deduction from salary or wages” mean? Another Minnesota statute requires that a “Voter’s Bill of Rights” be posted at all polling places.  The first such right is:

“(1) You have the right to be absent from work for the purpose of voting in a state, federal, or regularly scheduled election without reduction to your pay, personal leave, or vacation time on election day for the time necessary to appear at your polling place, cast a ballot, and return to work.”

The Minnesota Secretary of State’s website similarly states that “your employer cannot require you to use personal leave or vacation time.”  Therefore, it seems pretty clear that employees should not be required to use paid leave benefits when they are gone from work to vote.

Bottom Line

Election Day is just around the corner on November 6 so start planning now to adjust for employees taking time off to exercise their privilege of voting.