An Employer’s Guide to Tomorrow’s Midterm Elections

November 5, 2018 by

We are in an election season the United States has not seen in arguably decades, with contentious issues and close races teed up for tomorrow. Most of your employees will want to cast their votes if they have not already. Employers should not only embrace the freedom we have to vote in peace in the United States, but also should have a clear understanding of employee rights on election day.

High Turnout

Tomorrow’s election day could have the highest midterm voter turnout in years. This year’s early voter turnout in Dallas County nearly doubled midterm early-voting during the last two cycles in 2010 and 2014 and was only 20,000 voters shy of the early voting numbers in the 2016 presidential election. Other high population Texas counties show the same trends, including Harris, Tarrant, Bexar, Travis, Collin, and Denton counties.   The Dallas Morning News reported that early voting numbers have “crushed” prior Texas records.

Busy Polls on a Busy Tuesday

Federal elections occur on the first Tuesday after the first Monday of November. The United States arrived on this day in 1845 by act of Congress in order to encourage better turnout. At that time, rural travel to polling booths was a challenge, religious holidays were given greater attention, and this timing in November usually meant Fall harvest was over. Times have changed; the American economy evolved from an agrarian focus, society has become more secular, and technology and transportation have made voting easier. As the workforce and work have changed, ironically Tuesday election day remains despite Tuesday now being the most productive workday of the workweek.

In sum, employers should not be surprised if employees are standing in long voting lines instead of sitting at their desks. The polls close tomorrow at 7:00 P.M.; however, those in line will be afforded an opportunity cast his/her ballots. And with heated, close races, employers should expect some bleary-eyed election watchers returning to work on Wednesday due to later announcements regarding already tight local, state and federal races.

What is Required of Texas Employers?

Texas employers must provide an employee paid time off to vote tomorrow if he/she has not already cast an early ballot. See Tex. Elec. Code Ann. § 276.004(a). The exceptions to this rule are if the employee has already cast an early ballot or if the polls are open for two consecutive hours outside of the employee’s working hours. See id. at § 276.004(b). In addition to requiring employers to allow employees time to vote, employers also are prohibited from reducing wages and other benefits of employment and cannot intimidate or retaliate against employees for their voting choices or seeking to vote. See id. at § 276.004(a)(2) and (c).

Five Tips for Tuesday

  • Provide employees at least two hours to vote if they do not have a full two-hour block outside of work hours when polling places are open. Of course, keep in mind that if an employee voted early the employer does not have to give him/her time off.
  • Pay employees for their time off voting, but only if they must vote during work hours.
  • Avoid jokes, sarcasm, or negative comments about candidates, issues, or an employee’s election day choices or presumed choices. What may seem as a light-hearted joke to a manager could be received as an effort at intimidation by the employee.
  • Do not chastise an employee about failing to vote early.
  • Embrace the opportunity for Americans to vote in peace in open, democratic elections. Encourage employees to get out and vote!
Russ Brown

Russ Brown represents businesses and executives, with a focus on labor and employment law. He is regularly recognized for his legal acumen, with numerous honors as a Super Lawyer and Rising Star, and other business leadership awards from Dallas Business Journal and D Magazine. Mr. Brown co-founded Brown Fox and serves as the firm’s Managing Partner.

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