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It’s Election Time: Time Off to Vote, Political Activities, and Political Speech in the Workplace

With Election Day quickly approaching, it is the right time for employers to refresh themselves on the various protections that may exist for their employees when it comes to voting and other political activities. Below is an overview of employees’ rights related to voting and other political activities leave, as well as protections for political speech and activity both in and outside the workplace.

Voting Leave Laws

Approximately thirty states require that employers provide their employees with some form of time off to vote. Twenty-one of these states require that the leave be paid. The exact contours of these laws – such as the amount of leave, notice requirements, and whether there is an exception when the employee has sufficient time outside of working hours to vote – vary by state. For example:

In New York, employers must provide leave to employees who do not have sufficient time outside of working hours to vote. An employee is deemed to have sufficient time to vote if the polls are open for four consecutive hours before or after the employee’s shift. Employees who do not have such a four-hour window are eligible to take the amount of leave that will – when added to their voting time outside working hours – enable them to vote, up to two hours of which must be without loss of pay. Employees may take time off for voting only at the beginning or end of their shift, as designated by the employer, unless otherwise mutually agreed to between the employee and employer. Employees are required to notify their employer that working time off to vote is needed between two and ten working days before the election.
Similarly, in California, employees are entitled to sufficient time off to vote, up to two hours of which must be paid. Unless the employer and employee agree otherwise, the employee must take the leave at the beginning or end of the employee’s shift, whichever allows the most time to vote and the least time off from work. Employees are required to provide notice that time off to vote is needed at least two working days before the election.
In the Washington, D.C., employees are entitled to up to two hours of paid leave to vote in either an election held in D.C. if the employee is eligible to vote in D.C., or in an election held in the jurisdiction in which the employee is eligible to vote. Employees must submit requests for leave a reasonable time in advance of the election date. Employers may specify the hours during which employees may take leave to vote, including requiring employees to vote during the early voting period or vote at the beginning or end of their shift during early voting or election day.
In Illinois, employers must provide two hours of paid voting leave to employees whose shifts begin less than two hours after the opening of the polls and end less than two hours before the closing of the polls. Employees must provide notice of the need for leave before the day of the election.
In Maryland, employees are entitled to up to two hours of paid voting leave, unless the employee has at least two non-working hours to vote while the polls are open. Employees must furnish proof to their employers that they either voted or attempted to vote, which can be in the form of a receipt issued by the State Board of Elections.

Certain states, includingNew York, California, and Washington, D.C., require that employers post a notice of an employee’s right to take leave in a conspicuous location before the election. Sample notices have been published by the New York State Board of Elections, the California Secretary of State, and D.C. Board of Elections.

Other Political Leave Laws

Some states require that employers provide leave for political-related reasons beyond just voting. For example:

Alabama, Delaware, Illinois, Kentucky, Nebraska, Ohio, Virginia, and Wisconsin require that certain employers provide unpaid leave for employees to serve as election judges or officials on Election Day. In Minnesota, employees are entitled to paid leave for this reason; however, employers may reduce an employee’s salary or wages by the amount the employee receives as compensation for their service as an election judge.
Minnesota and Texas require that certain employers provide employees with unpaid leave to attend party conventions and/or party committee meetings.
Connecticut, Iowa, Maine, Nevada, Oregon, South Dakota, and Vermont require that certain employers provide employees with an unpaid leave of absence to serve as elected members of state government. In Iowa, employees are also entitled to leave to serve in a municipal, county, or federal office.
In Vermont, employees may take unpaid leave to vote in annual town hall meetings.

Some of these laws only apply to larger employers. For example, in Nevada, employers with at least fifty employees are required to provide leave for employees to serve as members of the state legislature. State laws also vary with respect to the amount of notice that employees must provide to their employers in order to be eligible for leave.

Political Speech in the Workplace

In our current political climate, many employers are concerned with what steps they can take regarding political speech and activity in the workplace. When these discussions or activities occur during working hours, they have the potential to negatively impact performance, productivity, or even possibly cross the line into bullying or unlawful harassment.

When employees publicly attend political rallies or support causes on social media, they may also (intentionally or not) create an actual, or perceived, conflict of interest with their employer. The complicated question of what exactly employers can do around employee political speech and activity is governed by various sources of law, some of which is discussed below.

Additionally, for employers with designated tax statuses, certain political speech can give pose risk to an organization’s tax-exempt status. Many tax exempt-organizations are subject to significant restrictions on lobbying and political activities. For example, 501I(3) organizations risk losing their tax-exempt status if they engage in political campaign activities or if a substantial part of its activities involves lobbying. Speech by an employee that constitutes political campaign or lobbying activity risks being attributed to an organization if an employee’s speech is seen as representative of the organization and being ratified by the organization. For example, if an employee urges their social media followers to contact their state representative about proposed legislation, this risks carrying the inference that the employee was speaking on behalf of the organization.

Employee “Free Speech”

There is no general right to “free speech” in a private sector workplace. Because the U.S. Constitution is primarily concerned with state actors, the First Amendment does not prevent private employers from prohibiting or restricting political speech in the workplace. Therefore, subject to certain exceptions discussed below, private sector employers are generally able to enact prohibitions around discussing politics at work and discipline employees for violating such policies.

However, as noted, an employer’s ability to restrain political speech in the workplace comes with some restrictions. At the federal level, Section 7 of the National Labor Relations Act (“NLRA”), which applies to both unionized and non-union employees, protects certain “concerted activities” of employees for the purposes of “mutual aid or protection.” Political speech or activity that is unrelated to employment, such as an employee distributing pamphlets generally encouraging co-workers to vote for a candidate or support a political party, would not likely be covered or protected by the NLRA. The NLRA therefore does not universally prevent employers from prohibiting political discussions or activities in the workplace.

However, political speech may be protected by the NLRA when it relates to the terms or conditions of employment, such as communicating about wages, hours, workplace safety, company culture, leaves, and working conditions. Therefore, an employee encouraging co-workers to vote for a candidate because the candidate supports an increase in the minimum wage might claim to come under the protection of the NLRA.

State laws may also place certain limitations on employer attempts to restrict employee political speech. For example, Connecticut law prohibits employers from taking adverse action against employees for exercising their First Amendment rights, provided that such activity does not interfere with the employee’s job performance or the employment relationship.

Lawful Outside Activity/Off-Duty Conduct

Many states have laws that prohibit adverse action against employees based on lawful activities outside the workplace, which may include political activities. For example:

In approximately a dozen states, employers are prohibited from preventing employees from participating in politics or becoming candidates for public office. New York Labor Law § 201-d prohibits employers from discharging or otherwise discriminating against employees because of their “political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property, if such activities are legal.” Political activities include (1) running for public office, (2) campaigning for a candidate for public office, or (3) participating in fund-raising activities for the benefit of a candidate, political party, or political advocacy group. Similar laws exist in California, Louisiana, and Minnesota, among other states.
Other states – including Delaware, Florida, Massachusetts, and New Jersey– prohibit employers from attempting to influence an employee’s vote in an election. In Florida, “[i]t is unlawful for any person … to discharge or threaten to discharge any employee … for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people.” A dozen or so states approach this issue in a more limited fashion by prohibiting employers from attaching political messages to pay envelopes.
At least two states, Illinois and Michigan, prohibit employers from keeping a record of employee’s associations, political activities, publications, or communications without written consent.
Washington, D.C. prohibits discrimination in employment on the basis of political affiliation. Despite its seemingly broad scope, this statute has been interpreted to only protect political party membership and not (1) membership in a political group, or (2) other political activities, such as signing a petition.

These laws vary considerably from state to state, so it is important for employers to consult the laws when considering policies or rules around employee political activity.

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As the election approaches and early voting takes place, employers should review the applicable laws for each jurisdiction in which they operate and ensure that their policies and practices are compliant. Employers should also ensure that managers are well versed in the employer’s policies around voting and political speech and activities so that they can properly respond as situations arise.

Out with the Old? Not So Fast! A Quick Review of 2023 Highlights

2023 has brought many updates and changes to the legal landscape. Our blog posts have covered many of them, but you may not remember (or care to remember) them. Before moving on to 2024, let’s take a moment to review our top five blog posts from the year and the key takeaways from each.

VAX REQUIREMENT SACKED IN TN: MEDICARE PROVIDERS LOSE EXEMPTION FROM COVID-19 LAWS

Our most read blog of 2023 covered the federal COVID-19 vaccination requirement that applied to certain healthcare employers, which was lifted effective August 4, 2023. (Yes, in 2023 we were still talking about COVID-19). However, keep in mind that state laws may still apply. For example, Tennessee law generally prohibits employers from requiring employee vaccination, with an exception for entities subject to valid and enforceable Medicare or Medicaid requirements to the contrary (such as the federal vaccine requirement). However, now that the federal vaccine requirement is gone, there is no exception for these Medicare or Medicaid providers, and they are likely fully subject to Tennessee’s prohibition.

INTERPRETATION OF AN INTERPRETER REQUEST? 11TH CIRCUIT WEIGHS IN ON ACCOMMODATION OF DEAF EMPLOYEE

In this blog post, we covered a recent Eleventh Circuit case in which the court addressed ADA reasonable accommodation requests . The employee requested an accommodation, and the employer did not grant it—but the employee continued to work. Did the employee have a “failure to accommodate” claim? The Eleventh Circuit said yes, potentially. The court clarified that an employee still must suffer some harm—here, he needed to show that the failure to accommodate adversely impacted his hiring, firing, compensation, training, or other terms, conditions, and privileges of his employment. So, when you are considering an employee’s accommodation request, think about whether not granting it (or not providing any accommodation) could negatively impact the employee’s compensation, safety, training, or other aspects of the job. Always remember to engage in the interactive process with the employee to see if you can land on an agreeable accommodation.

POSTER ROLLERCOASTER: DOL CHANGES FLSA NOTICE REQUIRED AT WORKPLACES

If your business is subject to the FLSA (and almost everyone is), you probably know that you must provide an FLSA poster in your workplace. In this blog post, we reported that there is an updated FLSA “Employee Rights” poster that includes a “PUMP AT WORK” section, required under the Provide Urgent Material Protections (PUMP) for Nursing Mothers Act (more information on the PUMP Act here).

HOLIDAY ROAD! DOL WEIGHS IN ON TRACKING FMLA TIME AGAINST HOLIDAYS

In this now-timely blog post from June 2023, we discussed new guidance on tracking FMLA time during holidays. The DOL released Opinion Letter FMLA2023-2-A: Whether Holidays Count Against an Employee’s FMLA Leave Entitlement and Determination of the Amount of Leave. When employees take FMLA leave intermittently (e.g., an hour at a time, a reduced work schedule, etc.), their 12-week FMLA leave entitlement is reduced in proportion to the employee’s actual workweek. For example, if an employee who works 40 hours per week takes 8 hours of FMLA leave in a week, the employee has used one-fifth of a week of FMLA leave. However, if the same employee takes off 8 hours during a week that includes a holiday (and is therefore a 32-hour week), has the employee used one-fourth of a week of FMLA leave? Not surprisingly, the DOL said no. The one day off is still only one-fifth of a regular week. So, the employee has still only used one-fifth of a week of FMLA leave. Review the blog post for options to instead track leave by the hour, which could make things easier.

OT ON THE QT? BAMA’S TAX EXEMPTION FOR OVERTIME

Alabama interestingly passed a law, effective January 1, 2024, that exempts employees’ overtime pay from the 5% Alabama income tax. In this blog post, we discussed the new exemption. It is an effort to incentivize hourly employees to work overtime, especially in light of recent staffing shortages and shift coverage issues. The bill currently places no cap on how much overtime pay is eligible for the exemption, but it allows the Legislature to extend and/or revise the exemption during the Spring 2025 regular session. If you have employees in Alabama, be sure to contact your payroll department or vendor to ensure compliance with this exemption.

As always, consult your legal counsel with any questions about these topics or other legal issues. See you in 2024!

Alabama Enacts New Telemedicine Law

Alabama Governor Kay Ivey recently signed SB 272 into law, setting forth telemedicine practice standards and abolishing Alabama’s previous “special purpose license” that allowed physicians licensed in other states to practice across state lines into Alabama. The law is effective July 11, 2022.

The law creates a new article in the Code of Alabama (Sections 34-24-701 through 34-24-707 of Chapter 24, Title 34). The statutory language is lengthy, but the key provisions are summarized below.

Medical License

Unless the physician meets an exception to licensure (e.g., peer-to-peer consultations, irregular or infrequent services), a physician must obtain either a full Alabama medical license or a license via the Interstate Medical Licensure Compact in order to provide “telehealth medical services” to a patient located in Alabama.

Telehealth medical services means “[d]igital health, telehealth, telemedicine, and the applicable technologies and devices used in the delivery of telehealth. The term does not include incidental communications between a patient and a physician.
The term “irregular or infrequent” services refers to “telehealth medical services” occurring less than 10 days in a calendar year or involving fewer than 10 patients in a calendar year.

Defined Terms and Allowable Modalities

Telehealth is defined as “[t]he use of electronic and telecommunications technologies, including devices used for digital health, asynchronous and synchronous communications, or other methods, to support a range of medical care and public health services.”
Telemedicine is defined as “[a] form of telehealth referring to the provision of medical services by a physician at a distant site to a patient at an originating site via asynchronous or synchronous communications, or other devices that may adequately facilitate and support the appropriate delivery of care.” The term includes digital health, but does not include incidental communications between a patient and a physician.
Digital Health is defined as “[t]he delivery of health care services, patient education communications, or public health information via software applications, consumer devices, or other digital media.”
Asynchronous is defined as “[t]he electronic exchange of health care documents, images, and information that does not occur in real time, including, but not limited to, the collection and transmission of medical records, clinical data, or laboratory results.”
Synchronous is defined as “[t]he real-time exchange of medical information or provision of care between a patient and a physician via audio/visual technologies, audio only technologies, or other means.”

Physician-Patient Relationship

A physician-patient relationship may be formed via telehealth without a prior in-person exam.

Telemedicine Prescribing of Medications and Controlled Substances

A practitioner may prescribe a legend drug, medical supplies, or a controlled substance to a patient via telehealth. However, a prescription for a controlled substance may only be issued if:

The telehealth visit includes synchronous audio or audio-visual communication using HIPAA compliant equipment;
The practitioner has had at least one in-person encounter with the patient within the preceding 12 months; and
The practitioner has established a legitimate medical purpose for issuing the prescription within the preceding 12 months.

In-Person Visit for Unresolved Medical Condition

If a physician or practice group provides telehealth medical services more than 4 times in a 12-month period to the same patient for the same medical condition without resolution, the physician must either see the patient in-person within 12 months or refer the patient to a physician who can provide the in-person care within 12 months. This in-person visit requirement does not apply to the provision of mental health services.

The Alabama Board of Medical Examiners and the Alabama Medical Licensure Commission are currently developing administrative rules in accordance with the new law.

Article By Kristen A. Murphy and Jacqueline N. Acosta of Foley & Lardner LLP

For more health law legal news, click here to visit the National Law Review.

In Historic Vote, Alabama House of Representatives Passes Medical Cannabis Bill

In February a bill to legalize, regulate, and tax non-smokable medicinal cannabis passed through the Alabama Senate on a 21-10 vote. Progress on the bill slowed after moving to the House. The medical cannabis bill passed both House committees it was assigned to in April.

On Tuesday the medical cannabis bill was set to receive a final vote on the floor of the House. Earlier that day, the bill easily cleared two House procedural votes by a vote of 69-31 and 71-20, to allow the bill to be brought to the House floor for a final vote. However, a handful of House lawmakers filibustered the final vote through speaking objections on the House floor. On Thursday morning the medical cannabis bill was again back on the House floor for another day of debate. The morning session started off with gusto, as both supporters and detractors appeared ready to fight with amendments, counter-amendments, and impassioned floor speeches filling the morning. Around 12:30 p.m. the House finally took a final vote on the medical cannabis bill, and it passed by a vote of 68-34. The medical cannabis bill will now head back to the Senate for concurrence or conference committee.

This is a historic day in Alabama politics, as this is by far the closest Alabama has come to passing a medical cannabis bill. Similar bills had previously passed through the Alabama Senate three times, in three separate sessions. This is the first time, however, a medical cannabis bill has come up for a full vote on the House floor – much less passed the House.

We will continue to monitor this bill as the Senate again takes it up for either concurrence or further consideration. That could happen as early as today, or it could be later this month.

This article was written by Whitt Steineker of Bradley law firm.

For more information about cannabis legislature, please visit the NLR Food & Drug section.

Tax Amnesties Popping up…and should be taken seriously!

Alabama, Connecticut and Texas are offering tax amnesty programs that have some huge benefits. Amnesty programs are a great way to resolve nexus issues and underpayment issues. As with most amnesty programs, you must not have been contacted by the respective state’s Department of Revenue to be eligible.

In Alabama, the amnesty period runs from July 1, 2018 through September 30, 2018. It includes most tax incurred or due prior to January 1, 2017 and includes a full waiver of interest and penalties.

Connecticut’s program is already open and runs through November 30, 2018. Connecticut’s amnesty program includes periods up through December 31, 2016. Connecticut will waive all of the penalty and 50% of any interest due.

Texas will offer an amnesty for most taxes due prior to January 1, 2018. The amnesty period runs from May 1, 2018 through June 29, 2018 and includes full penalty and interest waivers.

This post was written by Jordan M. Goodman of Horwood Marcus & Berk Chartered.

City of Birmingham Passes Nondiscrimination Ordinance, Creates Human Rights Commission

On September 26, 2017, the Birmingham City Council passed an ordinance that makes it a crime for any entity doing business in the city to discriminate based on race, color, national origin, sex, sexual orientation, gender identity, disability, or familial status. The ordinance passed unanimously and is the first of its kind in Alabama. Enforceable through the municipal courts, the local law applies to housing, public accommodations, public education, and employment. It carves out two exceptions: one for religious corporations and one for employers with bona fide affirmative action plans or seniority systems.

In a separate measure passed during the same meeting, the city created a local human rights commission to receive, investigate, and attempt conciliation of complaints. The commission has no enforcement authority. Citizens who believe they have suffered unlawful discrimination must appear before a magistrate and swear out a warrant or summons. The entity or individual will not receive a ticket but will face a trial before a municipal judge in the city’s courts. Ordinance violations are classified as misdemeanor offenses, and those found guilty of discrimination will face fines of up to $500. Alabama municipalities have no authority under state law to create civil remedies for ordinance violations, therefore, an employer would not be required to reinstate an employee or provide back pay if it were found guilty of violating the ordinance in municipal court.

Because the city’s courts, which are courts of criminal jurisdiction, operate much more quickly than federal civil courts do, one would expect that a guilty verdict under the Birmingham ordinance likely could be used as evidence of discrimination in a federal civil claim that is almost sure to follow.

Although the city’s mayor must sign the ordinance for it to become effective, the mayor has announced he will sign it into law immediately. The city also expects that the Alabama Legislature will challenge the ordinance.

For more legal analysis, go to The National Law Review

Oxford, Alabama, City Council Repeals Bathroom Ordinance Targeting Transgender Individuals

The Oxford, Alabama, City Council has repealed on May 4, 2016, an ordinance it passed a week previously that barred transgender people from using a bathroom that corresponds with their gender identity. (See our article, Oxford, Alabama, City Council Adopts Ordinance Restricting Access to Bathroom Facilities Based on Biological Sex.)

The ordinance made it unlawful for a person to use a bathroom or changing facility within the jurisdiction of the City that did not correspond to the sex indicated on the individual’s birth certificate. Persons deemed to have violated the ordinance could have faced a misdemeanor charge, punishable by a fine of up to $500 or up to six months’ incarceration.

The ordinance quickly garnered national attention and civil rights groups, including the Human Rights Campaign and the Southern Poverty Law Center, publicly condemned the ordinance. In a letter issued to the Oxford City Council prior to the repeal, the Southern Poverty Law Center, the American Civil Liberties Union, and the ACLU of Alabama stated that the ordinance violated the Equal Protection Clause by singling out transgender people for different and unequal treatment. The groups also argued that the ordinance violated the due process clause, “because of its broad reach and lack of enforcement mechanisms,” which, according to the groups, left it unclear “whether people risk arrest simply for failing to carry their birth certificates to the restroom at all times.”

The letter also stated that the ordinance violated Title IX of the Education Amendments of 1972, which prohibits sex discrimination in public schools. The letter noted a recent Fourth Circuit Court of Appeals decision, G.G. v. Gloucester Cty. Sch. Bd., No. 15-2056, 2016 LEXIS 7026 (4th Cir. Apr. 19, 2016), in which the U.S. Court of Appeals for the Fourth Circuit, in Richmond, accorded deference to the Department of Education’s interpretation of regulations governing toilets, locker rooms and shower facilities. The Department of Education opined that a school must treat transgender students consistent with their gender identity.

In a special meeting, the Council voted 3-2 to repeal the ordinance. Because the mayor was ill and had not yet signed it, the Council could vote to recall the ordinance. In repealing the ordinance, some Council members expressed concerns regarding whether the ordinance violated Title IX of the Education Amendments of 1972.

In addition to the repeal of the Oxford ordinance, the U.S. Department of Justice took a similar position in a letter dated May 4, 2016, to North Carolina Governor McCrory. The DOJ stated that North Carolina’s law restricting bathroom access to restrooms based on an individual’s biological sex and not based on an individual’s consistent gender identity violates both Title VII of the Civil Rights Act and Title IX of the Education Amendments of 1972. (See our article, Department of Justice Warns Governor that North Carolina LGBT Law is Unlawful.)

Article By Thomas A. Davis, Michelle E. Phillips & Kimberley R. Ward of Jackson Lewis P.C.

Eleventh Circuit Strikes Down Provisions of Controversial State Immigration Laws

The National Law Review recently published an article by Natalia S. Ballinger of Greenberg Traurig, LLP regarding State Immigration Laws:

On August 21, the U.S. Court of Appeals for the Eleventh Circuit struck down several provisions of Alabama and Georgia’s controversial immigration statutes, HB 56 and HB 87, respectively.

Specifically, the court blocked four provisions of HB 56, including the requirement that public schools investigate students’ immigration status and a provision that makes it a crime for illegal immigrants to solicit work. The court found that the statute impermissibly interfered with children’s constitutional right to education and further ruled against the state’s measure to criminalize the failure to carry immigration documents and the transporting or harboring of undocumented immigrants. In addition, the provision invalidating contracts with undocumented immigrants was also rejected by the court.

The court also struck down Section 7, a key part of HB 87 which criminalized harboring or assisting undocumented immigrants, on the grounds that it undermined federal law by “present[ing] an obstacle to the execution of the federal statutory scheme and challeng[ing] federal supremacy in the realm of immigration.”

Notably, the court upheld several provisions of both laws, including the right of police officers to check the immigration status of individuals who are suspected of a crime.

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