It is the height of primary season and Super Tuesday is but a few days away. With elections come requests from employees for time off from work to vote. Most states have laws governing the time off that an employee must be allowed. Some of those states require employers to pay employees for that time off. In addition, several states impose penalties for failure to comply with these laws.

Below is a sampling the basic provisions of state voting leave statutes. If you have a question regarding any of these laws - or regarding any state not listed - please contact your Schiff Hardin labor and employment attorney.

Alabama: All employees are entitled to up to one hour of time off to vote in primary and general elections. However, if the employee's shift commences at least two hours after the opening of the polls or it ends at least one hour prior to polls closing, then the employer is not required to provide voting leave time. Employers may designate the time.

Alaska: An employer shall grant an employee two consecutive hours to vote, unless the employee has two consecutive nonworking hours to vote.

Arizona: Employees who have less than three consecutive hours before or after their work-shift to vote in a primary or general election must be allowed paid leave of up to three hours. The employer can require notice prior to the day of election and specify the hours during which the employee may absent him/herself.

Arkansas: An employer must schedule all employees so that each has an opportunity to vote in all elections.

California: California requires employers to allow employees sufficient leave time to vote. The law does not specify the exact amount of leave time that must be granted. Unless they have a different agreement with employees, employers can grant time off at the beginning or end of a regular work shift, whichever gives employees the most time for voting and the least time away from work. At least 10 days before an election, employers must post a notice of voting time requirements. Employers can require employees to notify them two working days in advance of election day in order to take time off to vote. Employers are required to pay up to two hours for time taken off to vote.

Colorado: Employees who have less than three consecutive hours before or after their work-shifts to vote in a primary or general election may take paid leave of up to two hours. The employer can require notice prior to the day of election and specify the hours during which the employee may absent him/herself.

Delaware: Employers are prohibited from hindering, coercing or intimidating any qualified elector of the state from exercising his or her right to vote at any general, special or municipal election. Prohibited actions include bribery and threats of depriving the elector of employment or occupation, absolutely or contingently, directly or indirectly.

Georgia: An eligible voter is allowed two hours of unpaid leave to vote in any municipal, county, state, or federal primary or general election. The employee must give reasonable notice to the employer and the employer may designate the specific hours to be taken. An employee is exempt from the voting leave law if he or she has two nonworking hours in which to vote.

Hawaii: Any eligible voter is allowed up to two hours (excluding lunch or rest periods) in which to vote on an election day, unless the employee has two consecutive nonworking hours to vote between the time the polls open and close. An employee may not be subjected to any penalty, nor may the employer reschedule normal hours, on account of the employee's taking time to vote. An employer also is prohibited from deducting lost work time for voting from an employee's wages or salary, unless the employee fails to vote after taking time off for that purpose. Presentation of a voter's receipt by the employee is proof of voting.

Illinois: Any eligible voter is allowed up to two hours paid leave for voting in general or special elections or elections at which propositions are submitted to popular vote, if the employee's working hours begin less than two hours after the opening of the polls and end less than two hours before the closing of the polls, and provided that the employee makes an application to the employer the day before the election. The employer may specify the hours during which the employee may be absent.

Iowa: Any eligible voter is allowed three consecutive hours of paid leave to vote while the polls are open. An application must be made to the employer prior to the day of the election, and the employer may designate the time period to be taken.

Kansas: All eligible voter-employees are entitled to up to two consecutive hours of paid leave to participate in general, primary and special elections. The employer may specify the particular time of day for voting, but not during any lunch period.

Kentucky: Any eligible voter is allowed not less than four hours to vote or to apply for an absentee ballot. Employees must file an application for leave, and the employer may specify the hours to be used.

Maryland: Unless an employee has two continuous nonworking hours to vote, any eligible voter is allowed up to two hours of paid leave to participate in general, special, and primary elections, in the federal, state or local context. An employer may not make any deduction from wages if the worker votes or attempts to vote. Employees can be required to furnish proof to the employer of voting or attempting to vote.

Massachusetts: Employees are entitled to take up to two hours unpaid leave to vote in an election.

Minnesota: Every employee who is eligible to vote in an election has the right to be absent from work for the purpose of voting during the morning of the day of that election, without penalty or deduction from salary or wages because of the absence.

Missouri: Employers must provide paid voting leave to employees unless the employees have three consecutive hours to vote outside of working hours. To obtain leave, the employee must request a leave of absence to vote before election day, and the employer may specify which hours may be taken.

Nebraska: Any eligible voter is allowed two hours to participate in all elections. Employees must apply for time off before election day, and the employer may specify the hours that the employee may take.

Nevada: Any registered voter must be allowed sufficient time off to vote in all elections, if it is impracticable for the employee to vote before or after working hours. Employees must apply for leave before election day, and the employer may designate the time of the absence. The employer may not discharge, discipline or penalize the employee for such absence. Sufficient time to vote is determined as follows: one hour, if the distance between the voter's place of employment and polling place is two miles or less; two hours, if the distance is from two to 10 miles; and three hours, if the distance is more than 10 miles.

New Mexico: Voters may absent themselves from employment for two hours for the purpose of voting on election day. Time off must fall between the time of opening and the time of closing the polls. The voter is not subject to any penalty for such an absence, but the employer may specify the hours during which the voter may be absent. This provision does not apply to an employee whose work day begins more than two hours after the polls open, or ends more than three hours prior to the time the polls close. In addition, voters who are enrolled as members of an Indian nation, tribe or pueblo, who are qualified to vote in elections of Indian nations, tribes or pueblos, are entitled to time off to vote.

New York: Employees who have less than four consecutive nonworking hours while the polls are open may take paid leave of up to two hours to vote. Employer may specify the hours to be taken. Notice of this voting provision must be posted 10 days prior to an election.

North Dakota: North Dakota has no pay provisions for voting leave. However, employers may establish policies and are encouraged to allow eligible voters in all elections time off to vote.

Ohio: An employer is prohibited from discharging or threatening to discharge an employee for taking a reasonable amount of time to vote on election day.

Oklahoma: Employers must grant up to two hours of leave for employees to vote. Employers located too far from the polls for employees to vote within two hours must grant sufficient time for employees to travel to and from the polls and to vote. Employers can select the hours of absence. Employees must tell employers the day before the election that they need time off to vote. Employers cannot deduct from employees' compensation, or impose any other penalty, if employees provide proof of voting.

Puerto Rico: Employers are required to arrange shifts to allow voters time between 8:00 a.m. and 3:00 p.m. to vote in all elections.

South Dakota: Any eligible voter is allowed two hours (unless the employee has two consecutive nonworking hours) to vote in all elections. The employer may specify the hours used for voting. An employee's wages may not be reduced because he/she took voting leave.

Tennessee: Employees with less than three consecutive hours at the beginning or end of their workshift may take up to three hours of leave to vote in any election. The statute does not specify whether leave must be paid. Employees must notify their employer of intent to take the leave, and employer may specify the hours during which the employee may be absent.

Texas: Employees must be permitted to take time off from work on election day for the purpose of voting. However, if the polls are open for two consecutive hours outside of the employee's working hours, an employer is not required to give the employee leave to vote. An employee's wages or benefits cannot be reduced because he or she took leave to vote.

Utah: Employees with less than three consecutive non-work hours between the times polls open and close may take paid leave up to two hours to vote. Employee must notify employer of intent to take the leave before election day. Employer may specify the hours to be taken. Notice of voting provision must be posted ten days prior to an election.

Washington: Employees with less than two consecutive hours before or after their work-shifts to vote who are unable to secure an absentee ballot may take paid leave of up to two hours to vote.

West Virginia: An employer must grant up to three hours of leave to an employee in order to allow the employee to vote in an election, provided the employee has submitted a written request at least three days before the election. No deduction may be made from the employee's wages or salary for such leave; except, the employer may deduct wages or salary for actual work time lost if an employee has at least three hours of nonwork time between the opening and closing of the polls and neglects to vote during such time. In essential government and service industries and manufacturing works requiring continuity of operations, the employer may schedule the time for those requesting time off to vote so as to avoid impairment or disruption of services and operations, provided each employee is provided ample time to vote.

Wisconsin: Employees are entitled to up to three consecutive hours of leave to vote. Notice must be given before election day. Employer may designate time of day, and may deduct lost work time from wages, but can't impose other penalties.

Wyoming: Any eligible voter is allowed one hour, other than mealtime, to vote in a general, primary, or special congressional election. The hour may be set at the employer's convenience. An employee shall not lose pay for the time taken to vote, provided the employee actually votes. This requirement is not applicable to an employee who has three consecutive non-work hours during which polls are open.

A controversial decision from the National Labor Relations Board (the "Board") emphasizes the importance of having a communications policy regulating employees' use of an employer's e-mail system. In Guard Publishing, a case of first impression, the Board determined that a broad policy against using company e-mail systems to make non-work-related solicitations for third-party organizations can properly prohibit employees from making solicitations related to union activity. The Board also modified its standard for determining whether an employer discriminates against such activities in applying an otherwise neutral policy.

The Board examined an employer's communications policy to determine whether it violated the National Labor Relations Act ("NLRA") by effectively precluding employees from using company e-mail systems to solicit on behalf of the union. The policy stated in relevant part: "[c]ompany communications systems and the equipment used to operate the communications system are owned and provided by the company to assist in conducting business of [the employer]. Communication systems are not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations." The employer applied this broad policy to prohibit its employees from, among other things, making solicitations on behalf of the union, and disciplined one employee for sending three e-mails making solicitations for the union. The Board found that because the employer owned and had a property interest in its e-mail system, it could lawfully restrict its employees' non-work-related use of that system, so long as, in applying the policy, it did not discriminate against employee rights under the NLRA to organize and otherwise engage in concerted activities.

Additionally, the Board modified existing precedent regarding what constitutes discrimination in violation of the NLRA. Under the prior rule, where an employer applied its policy prohibiting use of its communications systems to make solicitations for organizations for non-work purposes to union activities, that prohibition could be deemed unlawful discrimination if the employer had previously permitted employees to send and receive any other personal and/or non-business-related e-mail communications. The Board, citing Seventh Circuit case law, modified its position by defining discrimination more precisely: "[u]nlawful discrimination [must consist] of disparate treatment of activities or communications of similar character because of their union or other Section 7 status." In other words, where a policy prohibits employees from making non-work-related solicitations on behalf of organizations, its application to union-related solicitations would only be discriminatory if the employer had previously allowed employees to use those same systems to make similar solicitations on behalf of other organizations.

As this decision shows, companies must be consistent in applying and enforcing non-solicitation policies. Application of such policies to union-related solicitations (or other activities generally considered "protected") could be deemed discriminatory where the company has allowed or continues to allow employees to use their communications systems to make similar solicitations on behalf of non-union organizations.

We will keep you apprised of how this decision is applied and interpreted by the Board in subsequent decisions and by the Courts of Appeals.

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