Pay-While Voting: When A Civic Duty Clashes With the Need to Profit

By: Christopher Theodorou

It’s that time of the year again: election season. With November 8th imminently approaching, it remains evident that there are some major points of contention between one’s civic right to vote and the protections afforded to employees through labor law.[1] Karen Michael, special correspondent for the Richmond Times-Dispatch, notes that “[a]lthough federal law protects citizens’ right to vote, there is no federal law or state law mandating that employers give employees a specific amount of time off to vote, nor do the laws require that employers pay employees for the time they spend voting.”[2] Here lies the great discrepancy among the states.

Virginia has failed to elucidate upon its statutory provisions that protect an individual’s right to vote.[3] The lines are largely greyed; Virginia law requires that an employee be afforded protection from facing an adverse employment action as a result of their time voting, but only offers true protection to employees on salary-based pay. Wage-an-hour employees are afforded no monetary compensation despite the fact that they are the class that is in the direst need of protection. Wage-an-hour employees may be granted time off from work, but none of this time will be compensated by the employer under Virginia law; most states follow this line of thought.[4]

Despite these small shortcomings, labor law has come a considerably long way considering “pay-while-voting” statutes do in fact eliminate against the risk of a penalty being levied against an employee during the course of their voting break.[5] This voting break is frequently characterized as being two hours long.[6] “Pay-while-voting” statutes have been deemed constitutional by the Supreme Court of the United States, but have progressed little beyond that.[7]

Of the fifty states and the District of Columbia, only twenty three have enacted true “pay-while-voting” statutes.[8] Some states like Florida have no specific statutory provision at all,[9] while other states like North Dakota merely “encourage” employers to grant unpaid voting breaks.[10] In Georgia, private sector employees are not afforded paid time off; however some private sector employers have notably taken a stand against the statutory absence and granted their employees paid time to vote.[11] Some employers have even gone a step further and granted their employees a paid day off.[12] “Leaders say the paid holiday leaves workers no excuses for not voting, even if the company loses some business.”[13] Solutions like holding elections on the weekend or designating election day as a national holiday have been proposed by President Barak Obama and Vermont Senator Bernie Sanders, respectively.[14] At the moment, there seems to be popular swelling towards changing the current election labor laws. As to how that plays in the future, stay tuned.

[1] Karen Michael, Do Employees Get Time Off For Voting?, Richmond Times-Dispatch (Oct. 23, 2016), http://www.richmond.com/business/learning-center/article_d1e9f808-e0d4-58cc-ac58-3d3aa7506208.html

[2] Id.

[3] Id.

[4] Id.

[5] James Buchwalter et al., Violation of “Pay-While-Voting” Statute, 29 Corpus Juris Secundum Elections § 582 (2016).

[6] See Benane v. International Harvest Co., 142 Cal. App .2d Supp. 874, 879 (App. Dep’t Super. Ct. 1956); see also Honer v. General Motors Corp., 138 N.Y.S.2d 799, 804 (Mun. Ct. 1955).

[7] See Day-Brite Lighting, Inc. v. State of Missouri, 72 S. Ct. 405, 408 (1952).

[8] State-by-State Time Off to Vote Laws, FindLaw (2008) http://www.findlaw.com/voting-rights-law.html.

[9] Id.

[10] Do Employees Get Time Off to Vote?, 9 No. 9 N.D. Emp. L. Letter 3 (October, 2004).

[11] Jennifer Leslie, Atlanta Staffing Firm to Offer Paid Time Off to Vote, WXIA (Oct. 17, 2016).

[12] Rachel Feintzeig, Should You Get a Day Off On Election Day? Some Employers Think So, Wall Street J, Oct. 18, 2016, http://www.wsj.com/articles/should-you-get-a-day-off-on-election-day-some-employers-think-so-1476799202.

[13] Id.

[14] Id.

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