Insights into law - Election year 2008

Robert W. Capobianco

May 1, 2008

The economy. War in Iraq and Afghanistan. A presidential election (with a woman or African-American as a party's nominee for the first time). All hot-topic issues in 2008 that may cause a surge of political activity in workplaces across America.

With this activity comes a responsibility for employers to know their applicable state law and to keep peace in the workplace without infringing on the rights of their employees. Employees' rights in this regard fall into two broad categories: leave to vote and political activity in the workplace.

Many states have some type of law governing an employer's obligations to its employees regarding taking time off for voting. Some states – such as Florida and New Jersey – have no laws requiring employers to provide employees with time off to vote. Some voting leave issues that Georgia employers should be aware of include:

Employee must be a registered voter. The employee must be a registered voter qualified to vote in the election before he or she can request time off from an employer.

Reasonable notice. Employees must provide employers with reasonable notice that they intend to take time off from work to vote.

Employers only are required to provide a specific amount of time off to vote. An employer is not required to provide an employee with more than two hours off to vote. Depending upon an employee's working hours, an employer may not be obligated to provide the employee with any time off to vote. If an employee at least has a two-hour window to vote either before or after his or her scheduled working hours, then an employer does not have to provide any time off to vote.

Employers choose the hours. If an employer is required to provide the employee with time off to vote, then the employer chooses the hours that the employee is allowed to leave to vote.

To pay or not to pay? Georgia law does not specify whether an employer is required to pay an employee for the time taken off to vote, but the attorney general has opined that paid leave is required.

This issue generally is easier for private sector employers in Georgia. They have broad discretion in limiting political activity during working hours because their employees do not have freedom of political expression protection under the First Amendment.

In contrast, California, New York and the District of Columbia prohibit discriminating against an employee on the basis of his or her political affiliation or activity; additionally, New Mexico protects employees declining to make political contributions from any punishment or reprisal.

For Georgia employers, the conservative (no pun intended) approach is to prohibit political activity and political discussion in the workplace so as not to create the potential for conflict between employees. Of course, prohibiting political discussion may not be practical, especially if an employer has not experienced any problems as a result of employees engaging in political discussions. In fact, if the political discussion is kept light-hearted or made jokingly, then such discussions may even boost employee morale.

If, however, political discussion creates conflict among employees, then an employer should take action to prohibit political discussion in the workplace. And, just like all its other policies, an employer should enforce the policy prohibiting political discussion and discipline those employees who violate it. Otherwise, an employer's liberal (OK, pun intended) enforcement or application of its policies may lead to some type of discrimination claim.

Robert W. Capobianco is a partner with the law firm Elarbee Thompson