Time Off to Vote: Paid or Unpaid

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Attorney Harrison Oldham

As you are probably aware, due to the overwhelming political coverage, mailers, commercials, etc., election day is quickly approaching. However, even though early voting has already started in the Lone Star State, employees may still need ask for time off to vote. Employers that simply say “no” to their employees might be violating Texas law.

Under the Texas Election Code, Texas employees have a right to take paid time off to vote on Election Day. The Election Code mandates that an employee must be given paid time off to vote if the polls close on Election Day within “two consecutive hours outside of the voter’s working hours.” For example, if an employee’s workday is scheduled to end at 6 PM on Election Day, and if the polls close at 8 PM, then the employee is entitled to leave work at 6 PM to go vote and to receive 30 minutes of paid leave. To avoid being short-staffed at the end of Election Day, employers can suggest, but not demand, that employees try to vote early so they can avoid long wait times at the polls or bad weather.

The paid time off to vote is protected by law, so employers may not refuse to provide time off when employees are entitled to take it, threaten employees for trying to take it, or impose penalties upon employees who take the time off to vote. Additionally, providing paid time off applies to all employees, including exempt and non-exempt employees.

To date, there has not been a single court decision interpreting these provisions.  However, there have been a few decisions from the Texas Attorney General that provide some guidance (but they are not recent).

One decision, from 1952 clarifies that the statute “does not require an employer to allow an employee time off to vote where the employee has sufficient time to vote outside his working hours”, and that no deduction from wages exists in such a case, but that if the employee needs extra time off from his working hours in order to vote, such extra time must be paid.

Additionally, a decision from 1967 provides that the statute “does not require an employee to be given time off to vote while working overtime hours that he had voluntarily requested. If the employer voluntarily permits such employee time off to attend the polls, during such overtime period, the employee is not entitled to be compensated for such time, either at his regular rate of pay or at the overtime rate.”

In addition to having the right to vote, Texas employees are protected from retaliation when it comes to how they vote. It is a felony to retaliate against an employee who voted for or against a particular candidate or measure, or who refuses to reveal how he or she voted. The anti-retaliation protection protects employees from actual or threatened “loss or reduction of wages or another benefit of employment.”

Employers with employees in other states may find that there is a good chance that those employees are also protected by similar laws, since more than half of the states have voting leave requirements.

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About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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