Tuesday, October 30, 2012

Do You Get Time Off Work To Vote?


Election Day is Tuesday Nov. 6, 2012.  Do you get time off to vote? 

Employees’ right to time off to vote depends on whether they are Federal employees or private sector workers.  If private sector, it depends on state law.  Thirty-one states require employers to give workers time off to vote, although the statutes vary widely in terms of the time provided, whether that time is paid or unpaid and whether the employee must give advance notice. 

FEDERAL EMPLOYEES: Whether you get time off depends on whether the polls are open at least three hours either before or after your regular work hours. If not, you are entitled to an excused absence (paid leave) that will permit you to report for work three hours after the polls open or leave from work three hours before the polls close, whichever requires the lesser amount of time off. The US Office of Personnel Management provides this explanatory example:

If an employee is scheduled to work from 8:00 a.m. to 4:30 p.m. and the employee's polling  place is open from 7:00 a.m. to 8:00 p.m., the employee should not be granted excused absence for voting, since the employee would still have at least 3 hours after the end of his or her work schedule to vote. However, if an employee is scheduled to work from 8:00 a.m. to 4:30 p.m. and the employee's polling place is open from 7:00 a.m. to 7:00 p.m., the employee may be granted ½ hour of excused absence from 4:00 p.m. to 4:30 p.m., if requested.

PRIVATE SECTOR EMPLOYEES: Your rights to time off for voting depend on the state.  Below are the rights in the 31 states that grant leave.  If your state is not listed, it means you have no specific state law that grants you the right to time off to vote.  Also, check with your boss as to whether you must request this leave in advance:

ALABAMA: You must give “reasonable notice,” and can take up to one hour unless the polls are open for two hours before your shift or one hour after your shift.  The law does not specify whether this leave is paid or unpaid.

ALASKA: You may take as much paid time off as needed to vote unless the polls are open for two consecutive hours before or after your shift. 

ARIZONA:   You may take up to three hours of paid leave if there are less than three consecutive hours between the opening of the polls and the beginning of your shift, or between the end of your shift and the closing of the polls.

CALIFORNIA: You may take up to two hours of paid leave if you do not have “sufficient time” outside of working hours to vote.  You mus take this leave before or after your tour of duty, not in the middle, unless mutually agreed.

COLORADO: You may take up to two hours of paid leave unless the polls are open for three hours of non-work time.

GEORGIA: You may take up to two hours leave unless polls are open two hours before or after your tour of duty. The law does not specify whether the leave is paid or unpaid.

HAWAII: You may take up to two hours of paid leave, excluding any lunch or rest periods unless the polls are open for two consecutive hours (excluding lunch and rest periods) during which you are not working.

ILLINOIS: You may take two hours of paid leave during working hours if your tour of duty begins less than two hours after the opening of the polls and ends less than two hours before the closing of the polls.

IOWA: You may take up to three consecutive hours of paid leave, unless polls are open for three consecutive hours during which you are not required to be at work. If the polls are open for less than three hours during which employee is not working, you may take leave up to an amount which, when added to the time the polls are open, equals three consecutive hours. The employer may specify when leave may be taken.

KANSAS: You may take paid leave for up to two consecutive hours unless the polls are open for two or more consecutive hours before or after your shift

KENTUCKY: You may take a reasonable time period, but not more than four hours. The law does not specify whether the leave is paid or unpaid.

MARYLAND: You may have up to two hours of paid leave. You must provide proof that you voted or attempted to vote. Get the approved form from the Maryland Board of Elections.

MASSACHUSETTS: You may take paid leave during the first two hours after the polls open.

MINNESOTA: You may take paid leave for the time necessary to appear at your polling place, cast a ballot, and return to work.

MISSOURI: You may take paid leave of up to three hours unless you have three successive hours while the polls are open in which you are not working.

NEBRASKA: You may take up to two hours of paid leave unless you have two consecutive non-work hours to vote while the polls are open.

NEVADA: You may take one hour of paid leave if the distance between your job and your polling place is two miles or less.  You may take two hours if the distance is more than two miles but not more than ten miles.  You may take three hours if the distance is more than ten miles.

NEW MEXICO: You may take up to two hours of paid leave during work time unless the polls are open either two hours before or three hours after you are scheduled to work.

NEW YORK: You may take up to two hours of paid leave, unless the polls are open for four consecutive hours either before or after your shift.

NORTH DAKOTA:   There is only a voluntary policy, whereby employers are "encouraged" to provide time off to vote when an employee's regular work schedule conflicts with the times polls are open.

OHIO: You are allowed a reasonable amount of unpaid leave to vote on election day.

OKLAHOMA: You may take up to two hours or more of paid leave if distance requires; must show proof of voting.

SOUTH DAKOTA: You may take up to two hours of paid leave unless the polls are open for two or more consecutive hours outside of your work hours.

TENNESSEE: You may take up to three hours of paid leave unless the polls are open for three or more consecutive hours either prior to or after your shift.

TEXAS: You may take paid leave unless the polls are open for two or more consecutive hours outside of your working hours.

UTAH: You may take paid leave of up to two hours unless the polls are open for three or more hours outside of your working hours.

WASHINGTON: You may take up to two hours of paid leave only if you have insufficient time to get an absentee ballot and the polls are not open for two or more free hours outside of your working hours.

WEST VIRGINIA: You may take up to three hours of paid leave.  But if you neglected to vote when the polls were open for three consecutive non-working hours, your wages can be deducted for time actually absent.

WISCONSIN: You may take up to three hours of unpaid leave.

WYOMING: You may take up to one hour of paid leave, excluding meal breaks, if you actually voted, unless the polls are open three or more consecutive hours outside of your working hours.


Partner Elizabeth L. Newman prepared this blog entry. 

Tuesday, October 16, 2012

Rights of Disabled Workers to Job Transfer

If you can’t do your specific job because you are disabled, do you have the right to be placed in another vacant position?  What if there’s another candidate who is more qualified for the vacant position?  In the DC Circuit, as well as the Seventh and Tenth Circuits, the Courts have held that employer's duty to accommodate a disabled employee now includes reassignment to an equivalent, vacant position for which the employee meets the minimum qualifications, even if a more qualified candidate has applied, so long as doing so would not pose an undue hardship.

The most recent case was decided last month by the 7th Circuit Court of Appeals in Chicago, EEOC v. United Airlines.  The lead plaintiff in that case was Joe Boswell, a United mechanic at San Francisco International Airport who had a brain tumor.  At first, he took leave and sought medical treatment. His doctors concluded that he would be unable to do his job as a mechanic.  But United did not offer him another job.  He applied for numerous other open positions at the airline, but he was consistently turned down.  So United  put him on involuntary leave. 

United had a policy whereby disabled workers had to compete for vacant positions.  They got preferential treatment over non-disabled workers for vacant positions.  That meant that if the two workers were equally qualified for a job, the disabled worker would win.  The policy did not afford automatic placement into those positions.  In other words, if the non-disabled candidate was better qualified, the disabled candidate would lose out.

The EEOC argued that United’s policy violated the Americans with Disabilities Act (“ADA”). It contended that the ADA required employers to do more - they must move workers losing their jobs because of disability to vacant jobs for which they are qualified.  According to the EEOC, it did not matter that there was a more qualified candidate.

The 7th Circuit agreed:
(We) hold that the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.
The 7th Circuit sent the case back to U.S. District Judge Harry Leinenweber in Chicago to review United's policy under this standard. 

The case is Equal Employment Opportunity Commission v. United Airlines Inc, 7th U.S. Circuit Court of Appeals, No. 11-1774.

If you feel that your employer has discriminated against you because of a disability, please contact Kalijarvi, Chuzi, Newman & Fitch for a confidential consultation.

Partner Elizabeth L. Newman contributed this blog entry.