Strange Times: Employment Implications of a Contentious Election During a Pandemic

Strange Times: Employment Implications of a Contentious Election During a Pandemic

Oct 09, 2020

Client Alert

Brownstein Client Alert, October 9, 2020

With the 2020 election season in full swing, key issues are being debated and discussed across the country, and not always in the form of polite discourse. One subject that is not up for debate, however, is an employer’s obligations to its employees regarding election-related issues.

Election season is a good time to remind employees of policies against discriminatory and harassing behavior, but employers must be careful to not limit discourse in a manner that runs afoul of employees’ rights under either the National Labor Relations Act, which applies to both union and non-union workplaces, or state laws protecting employees’ rights to engage in lawful off-duty conduct, political activity and related activity. In addition, many states have laws governing time off to vote, required postings and similar issues.

Although local and statewide elections occur frequently, presidential election years—especially with a contest as highly charged as this one—garner exponentially more attention. Employers would be well-advised to be prepared for the issues that are likely to arise, particularly in the context of the strong opinions and emotions that accompany this presidential election.

Political Discourse in the Workplace

This presidential campaign and the issues being addressed in it—such as police brutality, Black Lives Matter, white supremacists, abortion, preexisting medical conditions, gun rights, the Supreme Court, etc.—have incited inflammatory and divisive language and positions. Employees may be surprised to learn that First Amendment free speech rights generally do not apply to private employers. However, that doesn’t mean that companies have an unfettered ability to restrict political discussions or other expressions (such as campaign buttons) in the workplace. Employers must take care not to encroach on employees’ rights under the National Labor Relations Act, which protects discussions about the terms and conditions of employment and certain other concerted activity. Consider one employee telling others in the break room: “Joe Biden supports paid family leave and higher wages—we sure could use that here!” This statement could constitute protected activity because it relates to employees’ terms of employment. These issues can arise even in the “new normal” workplace mandated by coronavirus concerns—during Zoom meetings, Slack, emails and text messages—as well as in face-to-face interactions.

That said, employers can and should address behavior that could be considered harassing or discriminatory, even if that behavior arises in the political context. Indeed, as the rhetoric in the presidential race has become increasingly provocative, political issues have a greater chance of intersecting with established anti-harassment and anti-discrimination policies. For example, statements like “I support Donald Trump—he’ll make it harder for [persons of a certain nationality or religion] to get into the country” appropriately should be addressed by Human Resources. Put another way, just because employees are quoting candidates or spouting campaign rhetoric does not render their speech protected or take it outside of company anti-harassment policies.

Employers may also prohibit the use of company computers and other devices for engaging in political discourse and campaigning, subject to certain exceptions. If an employer already has such a policy, now would be a good time to recirculate it. As with all policies, employers should apply this restriction uniformly, regardless of the viewpoint espoused or the candidate or party supported.

Lawful Off-Duty Conduct and Political Protections

Potential employment issues during election season transcend the boundaries of the workplace, and employers must be aware of laws that protect employees’ off-duty conduct, political action and support of a particular candidate.

For example, Colorado law makes it an unlawful employment practice to terminate the employment of any employee for engaging in lawful activity off the premises of the employer during nonworking hours, subject to certain exceptions.i California has similar off-duty conduct protections, and also explicitly prohibits employers from making, adopting or enforcing any rule or policy that either (1) forbids or prevents employees from engaging or participating in politics or from becoming candidates for public office; or (2) controls or directs, or tends to control or direct, the political activities or affiliations of employees.ii Additionally, California law makes it unlawful for an employer to coerce or influence an employee’s political action or activity by means of threat of discharge or loss of employment.iii New York has similar protections for employees,iv as do many other jurisdictions.

Private employers therefore should tread carefully when making and enforcing restrictions that relate to political views or taking employment actions that could be perceived as relating to political views.

Time Off to Vote

Many employees who are eligible to vote will be scheduled to work on Election Day (Tuesday, Nov. 3). Many questions arise under state law as a result: Are employees entitled to miss work to visit the polls? What if the wait is lengthy and employees need several hours to vote? Must they be paid for the time it takes to cast their vote? How much notice do they have to provide of their need for voting leave? Are there other employer requirements, such as mandatory postings?

The answers to these questions vary by state. While some jurisdictions do not provide for any type of voting leave, others have voting leave requirements with varying degrees of specificity. For example, some states require that employees be provided “reasonable” or “necessary” time to vote, while others specify the number of hours, typically two or three. Many state laws that provide for voting leave include an exception that employees are not entitled to leave if they have sufficient time prior to or after their work shift to make it to the polls. In certain states, voting leave must be paid, sometimes with the condition that the employee provide proof that he or she actually voted.

By way of example, Colorado requires that employees “entitled to vote” in an election be permitted to miss work for two hours when the polls are open.v Employees must be paid for this time, and retaliation for taking voting leave is expressly prohibited.vi Although Colorado employers may specify the hours during which the employee may be absent, the hours must be at the beginning or end of a work shift, if requested by the employee.vii However, this law is inapplicable to employees with shifts that provide three or more consecutive hours between the opening and closing of the polls where the employee is not required to be at work.viii

In California, an employee is entitled to take up to two hours of paid voting leave if he or she “does not have sufficient time outside of working hours to vote.”ix (What exactly constitutes “sufficient time” is not specified.) The time off must be either at the beginning or end of the employee’s regular working shift, whichever allows for the longest period to vote and the least time off from the regular working shift, unless the employee and employer agree otherwise.x Employees are required to give their employers at least two working days’ notice if they “know[] or ha[ve] reason to believe that time off will be necessary to be able to vote on election day.”xi California employers must also mark their calendars for 10 calendar days before every statewide election, at which time they must post a conspicuous notice in the workplace advising employees of their rights to paid voting leave.xii 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.xiii

New York, which recently modified its election law, permits employees who are registered voters who do not have sufficient time outside of scheduled working hours to take as much time as needed off of work to enable them to vote without loss of pay for up to two hours (reduced from three hours).xiv Employees are deemed to have sufficient time if they have four consecutive hours either between the opening of the polls and the beginning of the working shift, or between the end of the working shift and the closing of the polls.xv Employers may designate whether time off to vote will be at the beginning or end of the shift, unless otherwise mutually agreed.[xvi] Employees cannot be required to use accrued vacation or paid time off to vote.xvii Employees must notify employers between two and 10 “working days” before the day of the election that they require time off to vote.xviii Like California, employers must post a conspicuous notice regarding voting rights as outlined in the statute, not less than 10 “working days” before every election, and must keep the notice posted until the polls close.xix (Although the term “working days” is not defined in the New York Election Law, guidance from the New York State Board of Elections indicates that “working days” means days the employer is operating or open for business.)xx

Election Day is fast approaching; employers should promptly familiarize themselves with applicable laws in each jurisdiction in which they operate, and ensure that their policies and practices are compliant. Employers should pay particular attention to remote employees who may be residing or working in other jurisdictions, whether regularly or on a temporary basis due to COVID-19. (Click here and here to review our two-part client alert on remote worker considerations regarding employment and tax laws.) Although many employees are now working remotely due to COVID-19, the laws that require postings generally do not address the adequacy of online or email notices for remote workers; consult legal counsel for guidance. In some cases, particularly for employers operating in multiple jurisdictions, the company’s policies may be more generous than applicable law; if that is the case, employers should comply with the more generous provisions.

By implementing these tips, employers can maintain a productive and harassment-free working environment through the final weeks of this contentious election season, while respecting employees’ rights and complying with applicable laws.

This document is intended to provide you with general information regarding election-related issues in the workplace. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.

i Colo. Rev. Stat. § 24-34-402.5(1).

ii Cal. Lab. Code §§ 96(k), 98.6, 1101.

iii Id. §1102.

iv N.Y. Lab. Law § 201-d.

v Colo. Rev. Stat. § 1-7-102(1).

vi Id.

vii Id.

viii Id. § 1-7-102(2).

ix Cal. Elec. Code § 14000(a)-(b).

x Id. §14000(b).

xi Id. §14000(c).

xii Id. §14001.

xiii Id. §12312.

xiv N.Y. Elec. Law § 3-110(1).

xv Id. § 3-110(2).

xvi Id.

xvii See id.

xviii Id. § 3-110(3).

xix Id. § 3-110(4).

xx New York State Voting Leave Rights, N.Y. State Bd. of Elections (2020), available at https://www.elections.ny.gov/NYSBOE/elections/TimeOffToVoteFAQ.pdf (last accessed Oct. 8, 2020).

 

 

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