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Best Practices Employers Can Use in Advance of Election Day, to Satisfy Minnesota’s Time Off Work to Vote Statute While Also Minimizing Disruptions to Their Operations

Election Day is fast approaching – Tuesday, November 8, 2016. Like most states, Minnesota has a law that protects employees’ rights to be absent from work for a sufficient amount of time to be able to vote. Under the Minnesota law, employees have the right to “be absent from work for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work on the day of the election.” Obviously the amount of time each employee may need depends on the employee’s commute to/from work and their individual polling places, which may vary considerably. Companies cannot interfere with this right, nor deduct from an employee’s pay, vacation or PTO because of the absence. Previously this right was limited to a reasonable time off work the morning of the election, but this was changed to allow for flexibility (for employers and employees alike) for the necessary time off to be taken at differing times throughout Election Day.

Employers unaware of this law run the risk of violating it (a misdemeanor under the law, subject to prosecution by the county attorney). However, from our experience it is more likely that employers who do not understand their rights and plan accordingly, wind up having large segments of their workforce being absent simultaneously on Election Day, or having employees miss far more work than should be necessary to cast a vote and return to work. In one case in a previous election year, an employer with a unionized workforce was told by the union representative that Minnesota law gave employees the day off to vote, with full pay – wrong! Therefore employers are well-advised to know what the law requires and what they, too, can require of their employees. With just a little planning and communications with employees in advance of this year’s Election Day, employers can work with employees to allow them to vote in the election, without adversely impacting operations.

Below please find the sample employee Election Day memo. Please note that there are several important things of which you need to be aware before using this memo.

1. The Minnesota legislature drafted the language of the employee time off to vote law in a fairly one-sided fashion, to wholeheartedly support the right of employees to vote on Election Day but with little regard for employers’ business needs. Even the language in the statute restricting paid time off to that time which is “necessary” to go vote and return to work, will be broadly interpreted on a case-by-case basis for each employee and, therefore, does little to prevent employee abuse. Accordingly and unfortunately, employers are generally advised not to police employees or take action on suspected abuses, absent extenuating circumstances supported by reliable evidence.

2. As a follow up to the foregoing point number 1, using this sample memorandum or any similar employee notice regarding this law is not always advisable. Many employers have workforces comprised of employees who simply do not exercise their right to be absent from work – with pay – for the purpose of voting. Issuing a memo of this sort may do more harm than good because it may actually encourage employees who would otherwise vote outside of working time (i.e. on their own time), to take time away from work to vote (or not vote but claim they voted), knowing they will be paid. However, for employers with unionized workforces or those who in the past have experienced disruptions to operations on election days due to large numbers of employees being absent, issuing this type of memo in advance of an election can mitigate against problems by encouraging the reasonable cooperation of employees to minimize any impact on operations.

3. The memo does mention that Minnesota law requires that employees be paid for time off to vote. However, the law does not require that employers advise employees of these rights, and so you may wish to omit it from the sample memo to avoid encouraging employees to take time off work on Election Day and/or stretching that time beyond what may be necessary to vote and return to work, if they know they will be paid for the time. Remember, however, that if this language is omitted from the memo you must nevertheless pay employees for this time not worked. Further, forcing employees to use paid-time-off, etc. to be paid for voting time away from work, is not permitted.

4. Because Minnesota’s employee voting law provides that employers may not, among other things, “directly or indirectly refuse, abridge, or interfere” with the voting rights of employees, it is arguably unlawful to impose new or disparate restrictions on the exercise of employees’ right to be absent from work to vote, versus how other absences may be treated. Accordingly, you will note that the memo requests advance notice from employees of the need to be excused from work to vote, and that prior approved arrangements must be made “pursuant to existing company policy.” Employers who do not have such a policy or practice in place for other absences prior to issuing a memo of this sort, may wish to omit this provision from the memo since arguably it would be more onerous than what is required of employees for other types of absences.

5. Obviously, the language in this sample regarding who employees should contact to make advance arrangements for time off to vote, should be changed to each employer’s custom and practice. In other words, replace “immediate supervisor or human resources” in the memo with “general manager,” for example, if that is who you customarily require employees to deal with on arranging absences or time off work.

On a final note, this sample memorandum to employees addressing Election Day procedures is not intended as a substitute for legal advice, which may differ depending on varying circumstances. Modifying this sample may run afoul of additional nuances of the Minnesota employee time off to vote statute and/or other laws; therefore, please consult with an attorney before utilizing this sample or any amended version of this sample.

Election Day Memorandum

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