Employee Time Off for Voting and Jury Duty

Small business owners usually know their employees well. They are often involved in their communities. Business owners understand the need for civic involvement, like voting and jury duty. But small businesses can have difficulty sparing employees away from work for a day of service on a jury or even a few hours at the polls.

There are no federal laws requiring time off for voting or jury duty. Most states have laws protecting workers' rights to vote if they do not have time outside working hours. State laws typically prohibit employers from punishing or firing employees for exercising civic rights. Company policy may also give employees the right to take time off work to vote or serve on a jury.

Time Off for Voting

After the success of mail-in voting during the 2020 pandemic, the number of states offering mail-in ballots increased dramatically. Eight states (California, Colorado, Hawaii, Nevada, Oregon, Utah, Vermont, and Washington) have all mail-in elections. Two other states, Nebraska and North Dakota, have county opt-in for mail-in voting.

The availability of mail-in voting means voters in these states should not worry about taking time off to vote. As part of their civic duty, employers should make information about mail-in voting available in the workplace.

Thirty states require employers to allow employees to take time off work to vote. Some states, such as New Mexico, require two hours of paid time off, but only when the employee does not have time before or after work to reach the polls. In New York, employees must notify their employer that they want time off to vote. Employers must provide information reminding workers of their right to take time off.

The one thing an employer may not do, under any circumstances, is attempt to influence their employees' votes. You may not suggest your workers should vote for particular candidates or ballot initiatives. You cannot threaten workers with reprisal if you learn they voted a specific way.

Remote, Hybrid, and Flex-time Workers

The rules remain the same for all your employees, whether in the office or log in remotely from their homes. If your small business is expanding and you have remote workers in other states, you may need legal advice from an employment law attorney in that state.

For instance, if your office is in California, which has mandated voting time off, and your remote worker is in Connecticut, which does not require time off but is on the East Coast, you may need to accommodate different laws and time zones.

Thirty-four states and the District of Columbia have "no-excuse" absentee ballots. These variants of mail-in ballots allow voters to request and send in an absentee ballot, even if they can vote on Election Day. If they vote in person, the mail-in ballot doesn't get counted. This option can resolve headaches for you and your remote workers.

Independent Contractors and Voting

The last few years have seen a rise in the number of independent contractors, freelancers, and gig workers filling the ranks of small businesses. In most states, 1099 workers do not have the same employee rights as regular workers. The only restrictions that bind them are those of the contract they signed with the business owner.

Federal and state law considers the degree of control an employer has over workers when determining if they are "employees" or "contractors." If an independent contractor or gig worker wants a certain amount of time to vote, that is their option.

If your contractors, such as Uber or Lyft drivers, are on the clock for particular hours each day, you may ask them to give you advance notice when they will be unavailable.

Time Off for Jury Duty

Most states have laws that require employers to allow their workers to take time off for jury duty service. In many states, violating these laws is a misdemeanor, punishable by a fine, imprisonment, or both. Some states also allow employees to seek reinstatement, back pay, and attorney fees.

State and federal laws mandate jury service. Employees may ask the court to excuse them, but the court does not have to grant the request. Jury duty laws protect workers whose employers did not allow jury duty time off.

No federal law requires you to pay an employee for jury duty. Eight states (Alabama, Colorado, Connecticut, Louisiana, Massachusetts, Nebraska, New York, and Tennessee) require employers to pay employees while they are on jury duty. Fifteen states prohibit employers from requiring employees to use sick leave, vacation time, or PTO for jury duty. Those states are:

• Alabama
• Arizona
• Arkansas
• Indiana
• Louisiana
• Mississippi
• Missouri
• Nebraska
• Nevada
• New Mexico
• Ohio
• Oklahoma
• Utah
• Vermont
• Virginia

Some states also require employees to give their employers notice of jury duty. Some states want "reasonable notice." Some, like Tennessee, want employees to provide employers with a copy of the jury duty summons given to their employers. Employers should have their jury duty policy written in the employee handbook.

The Fair Labor Standards Act (FLSA) requires employers to pay exempt (salaried) employees for any time they work, so if your exempt workers check in before or after jury duty, you will need to pay them. If you want workers to come in after jury duty to finish a job, be sure you're not violating state laws on overtime. California, for instance, does not permit more than ten hours per day without paying overtime.

Independent Contractors and Jury Duty

The same rules apply for independent contractors and jury duty as voting. If your contractor advises you they have jury duty and isn't available as required, you can't stop them. The contractor will likely want to avoid jury duty since they lose one day's pay or more.

If a contractor fills the full-time employee position and tells you they will be out for some time because they are a juror, you may need legal help. If the contractor is gone and you need another worker, you may have to break the contract.

Legal Help

Small business owners should review state laws about employee time off for voting or jury duty leave. Fewer workers mean you need a good leave policy for part-time leave. Talk to a business law attorney to ensure your policy complies with the law.