As lawyers who have handled several election disputes, one question we often are asked in the run-up to an election is what right employees have to time off for work to cast their ballot. Fortunately, Texas law provides a straightforward answer.
The Texas Election Code protects the right of employees to vote. An employer cannot retaliate against an employee based on the candidate for whom the employee voted or upon the employee’s refusal to reveal how he or she voted. Additionally, Texas employee is entitled to paid time off for voting on election days. This provision applies to all workers (including what commonly are known as “exempt” employees). But an exception exists for an employee who has at least two consecutive hours to vote outside of the employee’s working hours. So, what precisely does that mean?
First, if an employee voted during the early voting period, there is no entitlement to any time off on election day. That should be obvious.
Second, an employee is not entitled to time off if the employee’s normal working hours afford a consecutive two-hour period for voting on election day. So, for example, an employee whose normal work shift is 6:00 a.m. to 3:00 p.m. would not be entitled to time off. Why? Because that employee has more than two consecutive hours in which to vote after leaving work. The same would be true of an employee who works the 1:00 p.m. to 9:00 p.m. shift. Now, what about an employee whose normal work shift ends just one hour before the polls close? The answer is simple: The employee is entitled to be released an hour early to have the required consecutive two hours to vote.
Third, any time off from work to vote must be paid. That includes mandatory overtime (but not voluntary overtime).
One frequent question is whether employers can require employees to engage in early voting to avoid having to take time off on election day. Nothing prohibits an employer from encouraging employees to vote early. But the statute says nothing about permitting an employer to require early voting.
The other frequent question is whether the employer can set the two-hour period of time off. The answer is yes. So long as the employer permits the employee time off to vote, the employer gets to decide when that time off occurs. This permits employers to stagger the times that employees will be absent to vote.
Together, these laws help to ensure that no Texas citizen is denied the right to vote by having to work.