With the highly contested presidential election on Tuesday, November 8, 2016, many employers are concerned about political discussions in the workplace, whether those discussions can be restricted, and how to handle employees’ requests for time off to vote. This article addresses both issues.
Limiting Political Discussion in the Workplace
As a general matter, private employers may impose limits on employees’ political discussions during working hours. The First Amendment right of free speech only applies to government action and neither limits the rights of private employers to regulate employees’ communications nor provides any constitutional right for those workers to express thoughts or opinions at work. As a result, there is no constitutionally protected right of “free speech” in the workplace of private employers. Although employees may be entitled to express their views freely on their own time, they have no such wide-ranging constitutional rights at work.
Federal labor law, however, protects non-supervisory employees’ right to discuss wages and working conditions with each other for “mutual aid or protection.”[1] So, employers need to tread carefully; if a political discussion concerns labor issues, employers may not be able to restrict non-supervisory employees’ right to discuss it in the workplace. For example, employers may not be able to ban such employees from urging their co-workers during working hours to support a certain candidate because that candidate supports higher wages or benefits for workers. Much of what an employer can and cannot do in this regard is dependent upon the employer’s policies and past practices regarding other, non-protected discussions, such as sporting events or movies just to name a couple of topics. If the employer allows such non-protected discussions during working hours, the employer likely will be required to allow protected discussions regarding wages and conditions of employment during working hours as well.
While the nexus is not always clear between the political advocacy and benefits for workers, the General Counsel for the National Labor Relations Board (NLRB) offered guidance that includes the example of an employee attending a demonstration in favor of immigration reform as being protected by federal labor law. According to the NLRB General Counsel, because employment verification legislation could be deemed to chill even legal hiring activity, the demonstration sufficiently relates to the employees’ “mutual aid or protection.”[2]
The attorneys at Snell & Wilmer continue to monitor developments regarding legal protections for employees’ political discussions in the workplace.
Voting Leave Laws
While there is no federal law that requires an employer to give employees time off to vote, most states require employers to provide employees with time off to vote on Election Day.
Arizona
In Arizona, an employer must provide an employee with paid time off to vote if the polls are open less than three consecutive hours either before or after the employee’s shift. In this situation, the employer must provide the employee with time off that, when added to the time difference between the start or end of the employee’s regular work shift and the opening or closing of polls, would provide the employee a total of three consecutive hours within which to vote. The employee must request the time off to vote prior to the day of the election, and the employer may specify which hours the employee may be absent. Ariz. Rev. Stat. § 16-402.
California
California employers are required to provide employees with up to two hours of paid leave in order to vote, if sufficient time outside working hours is not available. The time off will be at the beginning or end of the regular work shift, whichever allows the most time for voting and the least time off from the regular work shift, unless otherwise mutually agreed. The employee must give at least two working days’ notice that time off for voting is desired if the employee, on the third working day before the election, knows or has reason to believe that time off will be necessary to be able to vote on election day. The employer must conspicuously post in the workplace, not less than ten (10) days before the election, a notice that sets forth the voting leave policy. Cal. Elec. Code § 14000, et seq.
Colorado
In Colorado, employers are required to provide their employees with two hours of paid leave for the purpose of voting if there are less than three consecutive non-work hours between the opening and closing of the polls. The employee must request the leave of absence prior to the day of the election, and the employer may specify the hours during which the employee may be absent, but the hours off must be at the beginning or end of the work shift if the employee so requests. Colo. Rev. Stat. § 1-7-102.
Nevada
Nevada employers are required to provide paid time off for employees to vote if it is “impracticable” for the employee to vote before or after the employee’s hours of employment. The question of “impracticability” is liberally construed to achieve the law’s purpose of ensuring that employees have a sufficient opportunity to vote. An employee working two miles or less from the polling place must be allowed one hour to vote, an employee working more than two but less than ten miles from the polling place must be allowed two hours to vote, and an employee working more than ten miles from the polling place must be allowed three hours to vote. The employee must request leave to vote prior to the day of the election. Nev. Rev. Stat. § 293.463.
Utah
Utah employers must provide employees with up to two hours of paid leave to vote, unless the employee has at least three or more non-working hours between the time polls open and close, during which the employee is not employed on the job. The employee must apply for a leave of absence before Election Day. The employer may specify the hours during which the employee may be absent from work; however, if the employee requests that the leave of absence occur at the beginning or end of the work shift, the employer must grant that request. Utah Code § 20A-3-103.
Notes:
[1] Section 7 of the National Labor Relations Act.
[2] R. Meisburg, Guideline Memorandum Concerning Unfair Labor Practice Charges Involving Political Advocacy, Memorandum GC 08-10 at p.8 (Jul. 22, 2008).
