Tuesday is Election Day. Polls are open in California from 7 a.m. to 8 p.m.
California employers must give an employee up to two hours of paid time off to vote if the employee is scheduled to be at work during that time and the employee does not have sufficient time outside of working hours to vote. Employers must provide this time off for voting “only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless otherwise mutually agreed.”
How does the right to vote by mail affect the right to paid time off for voting?
Californians may now cast their mail ballot at the time and date of their choosing beginning weeks before Election Day. According to the California Secretary of State, nearly 90% of California voters cast their ballots by mail in the 2020 and 2022 general elections and in the 2024 primary election.
Under the Voter’s Choice Act (VCA), voters in San Diego, Orange, Los Angeles, and 26 other counties may drop off their mail ballots at one of numerous voting centers beginning 10 days before Election Day. According to the California Chamber of Commerce, “All this makes it difficult for employees — especially those who vote in VCA-participating counties — to make the case that they need to time off to vote.”
I have found no binding rule from any regulator or ruling from any court, however, addressing whether California’s universal right to vote by mail limits or effectively eliminates the right to paid time off to vote. Absent such guidance, employers should allow employees to take this time off to vote if requested, even if the employee has not given at least two working days’ notice of the desire for paid time off for this purpose as California law generally requires.
Employers can’t ask their employees to bring their mail ballots to work
California Elections Code section 14004 prohibits an employer from requesting or requiring an employee to bring their mail ballot to work or to vote their mail ballot at work. This is akin to the bar in the California labor code on an employer threatening to terminate an employee for following or refusing to follow a particular course of political action or political activity.
Employers may encourage their employees to vote, but not reward it
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Section 14004 expressly “does not prohibit an employer from encouraging an employee to vote.” But it is a federal crime for an employer – or anyone else – to “make an expenditure” to someone for voting. As the U.S. Court of Appeals for the District of Columbia Circuit put it in a ruling last month, “Paying someone to vote is, of course, illegal.”
It is a crime under California law to reward any voter for voting for or against a particular person or measure or for not voting altogether. California law also makes it a crime to receive anything of value before, during, or after an election to vote or to refrain from voting.
Employers therefore should not reward their employees with money or anything else of value for wearing their “I Voted” stickers, sharing the email they received from the registrar of voters confirming receipt of their ballot, or for otherwise demonstrating they voted, even though prosecution is unlikely.
The choices Americans make in this election will determine how the law develops in the coming years. The law at work as it relates to elections aims to ensure those choices are made free of undue obstacles, pressure, or financial incentives.
Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at eaton@scmv.com.