2014 Midterm Elections: An Employer's DO's and DON'Ts

With the 2014 midterm elections coming up on Tuesday, employers may be grappling with election-related issues, such as employee requests for time off to vote and/or participate in political activities, as well as co-worker tension arising from political discussions at work.  In light of these concerns, we wanted to take this opportunity to remind employers of several important “do’s” and “don’ts” relevant to this election season: DON’T Pressure Employees to Support a Particular Candidate. It is a federal crime for an employer (or anyone else) to interfere with an individual’s ability to vote for federal candidates, to coerce an individual to cast a ballot in a specific way, or to bribe an individual in exchange for voting a certain way.[1]  Similarly, Texas employers are guilty of a third degree felony if, in retaliation against a voter who has voted for or against a candidate, the employer knowingly subjects or threatens to subject the voter to a loss or reduction of wages or another benefit of employment.[2]  For these reasons, it is important for employers to ensure that employees are not pressured in the workplace to vote for, contribute to, or volunteer for any particular political candidate. DO Allow Employees Time to Vote. Assuming that employees have not taken advantage of early voting, the Texas Election Code entitles employees to take paid time off for voting on election days, unless the employee has at least two consecutive hours to vote outside of the his or her scheduled working hours.[3]  In other words, Texas employees are entitled to paid “voting leave” only when (1) the polls are not open on election day for two consecutive hours outside of the employee’s working hours; and (2) the employee has not already voted under early voting procedures. Some employees may want to engage in additional political activities.  In Texas, attendance at state or local political conventions is job-protected leave, although time off to do so does not have to be paid.[4]  While some employees may want to take election day off to volunteer at polling locations or assist their preferred candidates, employers generally have no duty to give employees time off to participate in these activities.  Be advised, however, that voting leave laws are state-specific, and multi-state employers should consult with counsel regarding other state-specific voting leave requirements or limitations on political activity. DON’T Allow Employees to Conduct Political Activities in the Workplace. The fact that employers cannot interfere with employees’ political choices or right to vote does not mean that employees can bring their political activities to work.  Heated political discussions may hinder employee productivity and negatively impact morale and employee relationships.  For this reason, private employers should consider limiting such discussions in the workplace and/or giving employees who may feel uncomfortable with political debates an avenue to voice their concerns.  Finally, employers should prohibit employees from using company property (i.e., printers, paper, telephones, computers) for purposes of promoting political activities, as they would for any other non-business-related purpose. — Tony Campiti and Barbara-Ellen Gaffney, Thompson & Knight[1]See 18 U.S.C. § 594 and § 597.[2]See Texas Election Code, § 276.001.[3]Seeid., § 276.004.[4]Seeid., § 161.007(b).