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October 21, 2020

HR Alert: California Employer Duties for the Upcoming Election

Posted by Terri Oppelt

Upcoming Election Employer Duties

California laws allow employees time off to vote on Election Day, which translates to employees being permitted to take up to two hours off work without loss of pay if they are unable to make it to the polling place during non-work hours.  This probably sounded easy when it was written, but trying to decipher what you as an employer need to pay (or not) can be tricky now when most employees are working from home. 

Given that California polling places are open from 7 a.m. to 8 p.m. on Election Day and ballot collection boxes in many neighborhoods are available 24/7— not to mention the option to send a ballot in advance of Election Day by mail — what do you do as an employer when an employee comes to you and says they need time off during work hours to vote?

What are the employer’s responsibilities in this situation? Do you need to verify the time off? Do you need to get a note of some sort (perhaps evidence such as the “I Voted” sticker?) showing that they actually used the paid time off to vote? Do you need to have this pre-approved before the employee takes time out of a working day to vote?

We queried leading California labor law attorney Anthony Zaller for some direction. Here’s what he had to say about employer duties regarding Election Day:

During statewide elections, employees who do not have sufficient time to vote outside of working hours must be provided time off from work to vote.  This requirement applies to ALL California employers, regardless of their size.  In order to take the time off, however, the employee must inform the employer at least two working days prior of the need to take time off to vote. 

The law requires the employee to take the time either at the beginning or the end of the employee’s regular shift in order to provide the employee with the most free-time to vote and the least amount of time off of work.  Employees who do not have sufficient time off from work to vote and are granted time under this law by the employer are entitled to be paid for the time it takes to vote, but the pay is capped at two hours.   

Now that the state has implemented mail-in ballots, it raises the question of whether any employee would ever need time off work to vote.  However, employers should approach this issue with caution.  I think it would be a fair question for employers to inquire into the issue of why the employee cannot mail their ballot in to avoid missing work. 

There may be circumstances that explain why the employee cannot mail a ballot, such as if they never received a mail-in ballot or misplaced the mail-in ballot and will need to physically go to the polling place.  Employers should discuss these issues with employees to discover if any of these reasons may apply to the employee’s situation. 

The law is silent regarding the employer’s ability to document that the employee actually used the time off to vote.  Since the employer is paying for this time and since voting is a condition of the leave, there is an argument that the employer should be able ask for some evidence that the employee actually voted, but this requirement could be challenged since the law is silent on this issue.  In addition, the other issue is what type of documentation would be appropriate to confirm this. 

As for employees working from home, the law only requires the employer to pay the employee if they do not have sufficient time outside of working hours to vote.  This standard applies to employees working at home as well.  As a reminder, exempt employees’ pay cannot be deducted based on the amount of time worked.

The law is set forth in California’s Elections Code section 14000, et. seq.

“Time Off to Vote” Policy Notice

Employers also need to remember to post the required policy notice at least 10 days before the election in a visible workplace location. Given that so many workers are not currently in the office, should employers also send that notice out via email to all their employees working at home?  Yes, says Zaller:

Elections Code section 14001 requires employers to post the provisions of section 14000 “conspicuously at the place of work, if practicable, or elsewhere where it can be seen as employees come or go to their place of work.”  This must be posted not less than 10 days before every statewide election. 

Pre-pandemic, most employers complied with this posting requirement with the posters posted in the employee break rooms or other common areas.  The notice required in section 14000 is contained in most of these workplace posters employers utilize (but it is always good to double check). 

Since this is the first major election during the pandemic, there is some question on whether an employer is required to email this poster to employees, or if having the poster up earlier in the year at the office would be sufficient to comply with this requirement.  To be on the safe side, employers can always email the notice to employees who are working from home.

You can find the policy notice here.

Thank you to Anthony Zaller of the Zaller Law Group, PC for taking time to help us explain the employer duties related to this important election!   If you have questions, contact Armanino’s HR experts.

 

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