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Texas Employer Obligations on Election Day!

It's that time of year, the final months before a presidential election. This is painfully obvious when we see the candidates go at each other's throats, then see co-workers and neighbors follow suit. The Washington Post[1] recently cited complex data indicating that Americans are much more divided than ever before. Hence, the increased discord you might see at work and during family get-togethers is accurate, not an illusion.

In your role as an employer, you must keep your cool and understand the law. Employers have specific responsibilities when letting people leave work to vote. Because I practice law in Texas, that's the article's focus, but many states have rules about when employers must let employees leave work to vote. Two states (New York and California) also have specific voting rights posting requirements for the workplace. Regarding Texas law, employers (and individuals who supervise employees) might inadvertently commit a crime if they don't understand the rules. Two potential crimes should be on your radar. One can only occur on election day if the employee doesn't have two consecutive hours to get to the polls. The second crime is more severe and can theoretically happen at any time.

Class C Misdemeanor - Applies only if polls are not open for two consecutive hours outside a voter's working schedule.

If you have employees, make sure you take a look at this summary by the Texas Workforce Commission. TWC does an excellent job of summarizing what employers need to consider regarding time off for voting. The Texas Election Code (§276.004) makes it a Class C misdemeanor to refuse to let someone miss work to vote or to threaten someone with a penalty if they go to the polls. The Texas Workforce Commission says that, on election day, the employer should give employees at least 2 hours of paid time off to go to the polls if they did not already vote during the early voting period and if their work schedule does not allow for two consecutive non-work hours when the polls are open.

Third Degree Felony - Applies to everyone, all the time.

Texas Election Code (§276.001) makes it a felony for someone in a position of authority over an employee to threaten or retaliate against an employee either because the employee voted in a certain way or because the voter refused to disclose how they voted.

Tips for Employers:

  • To avoid any accidental threat to an employee, it's probably best that you do not discuss politics if you are particularly passionate about a candidate or ballot measure. Harmful passion (i.e., insults) directed at your employee could be perceived as a threat to their job or some other workplace benefit. It could quickly devolve into an I Said/You Said fight, and those rarely end well for employers.

  • You'd probably have to live under a rock to miss that we are facing a big election this November. Unfortunately, many polls go under the radar for many citizens. Even if you didn't realize an election was happening or if you don't think it's an "important" election, don't forget your §276.004 obligations.

  • If your employees work an 8-5 schedule in Texas, then theoretically, §276.004 won't apply to you because Texas polls are open from 7 a.m. to 7 p.m. That means the employee will have exactly two hours to get to the polls after leaving your place of business. Having said that, if an employee approaches you and says they need to go a little earlier to get to the poll on time (perhaps because they live in a nearby town), it might be in your best interest to permit them some extra time to get to the polls. It's unlikely to cause any significant disruption in your business, and it's good for employee morale. If, on the other hand, you refuse to give anyone extra time off because a business closes at 5 p.m., do yourself a favor and make sure you don't keep anyone later than 5. The conservative approach would be to close the doors just a few minutes early to ensure everyone gets two hours to get to the polls. (Remember that even if an employee "chooses" to stay overtime, they might later claim that they weren't given a choice about staying overtime. In addition, a court might hold that you didn't give them time off to vote even though the polls were not open for two consecutive hours outside of work hours.)

The simplest and wisest advice is to treat your employees with respect. Use common sense. If someone is spouting political views you consider entirely off the wall, either don't react or let them know the workplace isn't an appropriate venue for that sort of discussion. After that, immediately move on to the next work-related subject. If someone needs a little more time to get to the polls on election day, make sure you're looking at the big picture when you decide whether or not to comply with their request, even if they are scheduled to leave at 5. Look at it this way: you'll be doing your part to put a little more civility into our society during this campaign season, and we sure could use a little more of that!

Achenbach, Joel, and Clement, Scott. The Washington Post "America is more Divided than Ever" July 16, 2016.

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