Voting Rights for Your Employees
By Rebecca Bruch, Esq.
No matter what your politics may be (and we are certainly not going there in this article), one thing we can all agree on is the importance of every single vote. Remember Bush v. Gore? With the next national election just around the corner, there are some important employee rights worth mentioning, some that your employees have, and some rights they do not have. I wanted to share some of those rights with you, so you are prepared to address, encourage and support your employees in exercising those rights, and responding to misconceptions they might have about other rights.
WHAT RIGHTS DO YOUR EMPLOYEES HAVE?
In Nevada, your employees have a right to paid time off to vote, with certain restrictions. NRS 293.463 requires employers to provide employees with sufficient paid time off to vote if it is impractical for the employee to vote before or after work. While you may be thinking that early voting and mail-in voting eliminates the need for time off work, the Nevada legislature does not agree; and neither do the courts or the Labor Commissioner if you find yourself sharing your thoughts with them. They are not going to be swayed. The obligation remains.
“Sufficient time off to vote” is defined in the law: (1) One hour if the distance between the place of employment and the employee’s polling place is two miles or less; (2) two hours if the distance between the place of employment and the employee’s polling place is more than two miles, but not more than 10 miles; and (3) three hours if the distance between the place of employment and the employee’s polling place is more than 10 miles. An employee is not required to provide proof that they actually voted in order to get paid.
Nevada law does require that employees provide advanced notice of their intent to take leave to vote, but “advanced notice” is not defined. The law only requires that the advanced notice be prior to election day.
The advent of early voting muddies the water on this requirement, or at least provides for interesting cocktail conversation. It is not hard to visualize an employee asking for paid time off to participate in early voting. I am not aware of this concept being tested in court. From the 30,000-foot level, it appears to me that the law was intended to only apply to election day. For example, the advanced notice requirement relates to notice being given “prior to election day.” Notwithstanding employer’s-lawyer DNA running through my veins, it begs the question: Is this a hill you want to die on? If an employee asks for paid time off to participate in early voting, I am not sure I would encourage my clients to be the test case over a couple hours of pay to participate in one of the greatest rights we have as citizens of our country. On the other hand, I have complete and total sympathy for my clients who are forever trying to deal with that one employee who seems to always be pushing the limits as far as they can.
WHAT RIGHTS DO EMPLOYEES NOT HAVE?
Here is how the phone call goes:
Employer: Hi, Becky. Thanks for taking my call. I have a sticky situation here. One of my employees came into work today wearing a MAGA hat and telling everyone they are stupid if they don’t vote for Mr. XYZ, who is running for governor. When I told him he could not wear the hat and he could not be pressuring people to vote for Mr. XYZ, he started getting pushy and loud and said he had First Amendment rights. He insisted he had a right to talk about anything he wanted, and if I did anything to retaliate against him, he was going to sue me. What can I do about this? Everyone is so upset.
Becky: I’m glad you called. First of all, you are a construction company, and contrary to popular belief, your employees have NO First Amendment rights.
Employer: Whaaaat? I thought everyone had First Amendment rights.
Becky: Well, lots of people believe that, but the First Amendment only comes into play when the government gets involved. The First Amendment does not apply to private actors, and employers are private actors. Whole different story if you were one of my public employer clients.
Employer: Wow. I didn’t know that. My brother works for the County and he told me everyone has First Amendment rights.
Becky: Nope. But… you need to be careful. The National Labor Relations Act allows employees to discuss the terms and conditions of their employment, so if the rallying of your employee crosses over into how much taxes he is paying, for instance, and he is discussing that with his coworkers, it could rise to a level of protected concerted activity, which you cannot prohibit. Also, are you allowing some employees broader latitude to talk about political issues than others? If you are, that can provide a basis for an EEOC complaint if the person belongs to a protected group or has engaged in other protected activity. Isn’t this rabble-rouser the same guy who had recently filed a work comp claim that you were objecting to, accusing him of faking it? If that’s the same guy, he could say you are not allowing him to wear his MAGA hat because you are retaliating against him for filing the work comp claim. How are you treating other employees? Is everyone being treated the same?
Employer: Well, the same guy is all over social media supporting Mr. XYZ, and he is identifying himself as an employee of the company. He’s wearing a company t-shirt in the pictures. Can I do anything about that?
Becky: It depends.
Employer: You always say that.
Becky: I know. Your guy is protected from engaging in lawful off-duty conduct, but he cannot be making posts in a manner that could infer he is speaking on behalf of your business. I know that is part of the policy I wrote for you when we updated your personnel manual last year. Check it out, and if you are sure his posts are connecting him to your business, you are permitted to remind him about the policy, and tell him he needs to make it clear in his posts that he is only speaking in his private capacity, and not on behalf of anyone else. If he continues, we can talk about possible discipline.
Employer: Well, that sure is a lot to keep track of. Sounds like I’ve got some work to do.
And so the story goes…
If you have any questions, you are invited to contact any of the employment lawyers at Lemons, Grundy & Eisenberg.