I Hear There is an Election Coming Up – Is There Anything I Should Be Concerned About?

If you have not watched television or driven on any road lately, you might be surprised to learn that there is a presidential election scheduled for Tuesday, November 6.  Well maybe not.  This blog focuses on issues that employers should consider during the next few weeks.

Florida law does not require employers to give employees time off to vote.  Nor are their county ordinances in Miami-Dade, Broward, or Palm Beach that guarantee employees time off for voting.  Given the availability of early voting, absentee ballots, and poll hours before and after work, employers should not feel compelled to allow employees time off to vote.  However, if you do allow time off to vote, you must be consistent.  Allowing only individuals or classes of employees time off to vote who you anticipate will vote for your preferred candidate could lead to claims of voter coercion or disparate impact.

Do not dock the pay of exempt employees who miss work time to vote.  As you know, to qualify for an overtime exemption under the Fair Labor Standards Act, many employees must be paid on a salary basis.  Docking a salaried exempt employee’s pay for a partial day absence is inconsistent with the notion of salary basis.  Docking these employees’ pay for a partial day absence could result in having to pay them, and all employees in their job classification, overtime going back up to three years.

For private employers, employees have no free speech rights under the First Amendment.  If you are a private employer, the Constitution’s right to free speech does not apply to your workplace.  You can prohibit all political speech in the workplace, with some caveats.  Some political speech could implicate state and federal prohibitions against discrimination on the basis of religion.  Issues such as birth control, abortion, and gay marriage are hot political topics, but they also may implicate an employee’s religious beliefs.  A discussion about a party’s or a candidate’s views on organized labor could be protected under the National Labor Relations Act.  Rather than ban all political speech in the workplace, employers should consider reminding employees to keep discussions about political issues civil and to respect a co-worker’s request not to participate in the conversation.

Do not try to influence for whom or for what employees vote.  Employers should avoid trying to influence employees to vote for a particular candidate or for or against a particular ballot measure, such as an amendment to the state constitution.  Florida law gives voters the right to vote free from coercion or intimidation by elections officers or any other person.  Employers should steer clear of trying to influence how employees vote.