Analysis

How To Make Election Day Go Smoothly: 4 Tips For Employers

Law360 (October 26, 2020, 4:06 PM EDT) -- Next Tuesday will give a sharply divided nation a chance to cast votes in what's being billed as the most important election in U.S. history, but for many working people and the companies that employ them, it's also another day on the job.

Amid reports of surging early voter turnout and several battleground states bracing for photo finishes in the presidential and congressional races, employers may find that far greater numbers of their workforce will be looking to cast their ballots than in prior election cycles.

For employers, that means finding time for more workers to head out to the polls in states that mandate voting leave, and a greater potential for partisan fights between colleagues could leave employers on the hook for claims of discrimination or harassment.

Matthew Damm, counsel at Fenwick & West LLP, said the main issue for employers to review is their internal policies governing workers' ability to take time off to go vote and then cross-checking that against current state laws.

"I think there are a lot of employers out there who might have policies that may not be completely in line with the most current state of the law," Damm said. "But in any event, they should make sure they're following whatever their written policy is and make sure that policy is compliant with the law in the state where they have employees."

Here are four tips that can help businesses make sure Election Day goes off without a hitch.

Pull the Plug on TVs

Although the pandemic presents employers with a new set of challenges they've never faced before, one problem that comes up every election cycle is having to deal with the fallout from verbal confrontations that occur when co-workers get embroiled in an argument about politics at the worksite or denigrate colleagues for supporting particular candidates.

One simple way employers can nip those issues in the bud is by not tuning TVs in common spaces to the sort of political commentary that could trigger fights, according to Bernard Bobber, chair of Ogletree Deakins Nash Smoak & Stewart PC's manufacturing industry practice group. He also pointed out the possibility that the winner in the race between President Donald Trump and Joe Biden won't be known on election night, meaning that businesses should guard against lingering distractions and workplace hostility that may occur if there is a drawn-out process to determine the victor.

"Turn off the damn TVs," he said. "I've already seen this — in break rooms in factories, people keep switching back and forth between MSNBC and Fox News and half your workforce is [mad] every time somebody does that."

Don't Ignore Social Media

Besides the possibility of fights breaking out in the workplace, a broader concern for employers is facing situations where workers engage in heated debates about politics on Facebook or other social media platforms.

"I make the statement all the time that there's no question employees tend to be more free with their expression and statements around the virtual watercooler than they are around the physical watercooler," said Michael Schmidt, vice chair of Cozen O'Connor's labor and employment practice. "With that said … the rules of the road when it comes to workplace-related conduct still apply to conduct and statements over social media."

While employers' instinct may be to curb political speech altogether to cut off potential problems, that might be a legally perilous approach and one that is hard to enforce whether it applies to the physical workplace or to social media, lawyers say. 

"I think absolute bans on anything having to do with politics is never a good idea," Schmidt said. "You as an employer want to make sure that employees understand that normal workplace rules when it comes to harassment, discrimination and retaliation are still in effect. And that's still true whether they are in person at a physical worksite or are communicating through electronic means or social media."

If questionable comments are made over social media and they end up garnering an employer's attention, Schmidt said companies should first assess whether the statements violate any workplace policies like those that pertain to harassment or bias, and then determine if the remarks are in any way legally protected such that no action can be taken against the worker for making them. That approach can also apply if situations occur in person that may cross the line into unlawful behavior. 

"I think the overarching takeaway to this issue is that employers should not be knee-jerk in their reactions to conduct or statements of employees and instead should really take a step back and analyze on a case-by-case basis what the statement or conduct was, what the impact on the business or on co-workers were, and whether the applicable laws in that jurisdiction preclude the employer from taking any action that it wants to take," Schmidt said.

Know (All) Your State Laws

When it comes to election-related legal requirements, a key one for employers to have top of mind in the run-up to Election Day is what their state requires as far as giving workers paid or unpaid time off to head to the polls, experts say.

If employers operate in multiple states, that puzzle becomes trickier since rules can vary drastically across state lines and each facility would be bound by the laws of the state where it is located. For example, states can differ on whether employers must provide time off at all, how much time workers are afforded, whether they have to be paid for that time, and much advance notice workers need to give that they need time to head to the polls. Some states have no legal mandates in place for giving workers time off the job to vote.

Given that legal framework, it behooves employers to create site-specific rules that take particular state mandates into account, according to Bobber.

"Voting leave laws are state-specific, and multistate companies have to be sure that they're not trying to impose a one-size-fits-all without knowledge of the applicable state law where a particular workplace is located," Bobber said.

Moreover, Bobber said employers shouldn't expect workers to do the legwork on their own to figure out exactly what voting leave rights they have or what kind of notice requirements apply, adding that employers can save themselves plenty of headaches by communicating pertinent information upfront.

He noted that businesses often have the ability to determine when exactly individual workers take leave time to vote, and they often stagger workers' leave throughout Election Day to maintain productivity.

As an example, in Wisconsin, where he practices, Bobber said workers are entitled to three unpaid hours on Election Day to go vote, but employers can dictate when those three hours are granted and workers must give at least a day of notice that they will need time to vote.

"Don't let your employees believe that, 'I can simply go vote whenever I want, and my employer can't impose a tardy or an absence no matter how long it takes.' That's just not true," Bobber said. "But employees can't be expected to go and research the voter leave laws; the employer should tell them."

Encourage Early Voting

Many states have expanded options for advance voting in 2020 given the public health challenges of running an election during the coronavirus pandemic, including early voting that allows people to head to polling sites and cast their ballot before Election Day.

"Really thinking outside of the box right now — leverage early voting," Bobber said. "I have never seen employers actually promote how to do early voting in their states, but it's so mainstream this year because of COVID that I think employers should jump on that and help facilitate that process."

That includes disseminating information to workers about early voting times and locations and "emphasizing" its value for safety reasons, and making clear that the employer will accommodate workers who want to take advantage of that voting option in a way that's consistent with the law in that state, according to Bobber.

Given that many states that require voting leave don't mandate that it be paid time off, Bobber said hourly workers will lose less money if it only takes them 30 minutes to vote sometime before Election Day, as opposed to having to stand in line for hours on Nov. 3. Employers, meanwhile, gain the practical benefit of spreading out workers' absences beyond one day if they leverage early voting.

"This is in the employer's interest because it's going to reduce COVID risks that may occur as people stand in line with crowds on Nov. 3, and it's going to reduce work inefficiency risks [relating to] how many people are gone and for how many hours on Nov. 3," Bobber said.

--Editing by Rebecca Flanagan and Aaron Pelc.

For a reprint of this article, please contact reprints@law360.com.

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