The upcoming elections on Tuesday, November 8 provide an opportune occasion to review the rights and obligations of employers and employees with respect to time off for voting.
Employees in Minnesota are entitled to time off from work on Election Day. Under Minn. Stat. §204C.04, subd. 1, employers must permit those workers who are eligible voters the “time necessary to be absent from work in order to vote.” The law’s requirement that this take place “during the morning” was expanded in 2010 to any time during the day. Employers cannot penalize workers or deduct salary or wages because of their absence. Violation of this law is a misdemeanor under §204C.04, subd. 3, which obligates county attorneys to prosecute.
The statute establishes a minimum. Employers may have policies allowing more time off for employees for voting purposes. Collective bargaining agreements, which cover about 15 percent of the work force in Minnesota, often include additional election leave provisions more extensive than the state law minimum.
The mechanisms to enforce these provisions vary. In addition to criminal prosecutions, which are extremely rare, a civil lawsuit might be pursued under an implied cause of action theory. See Flour Exchange Bldg. Corp. v. State, 524 N.W.2d 496 (Minn. App. 1994), rev. denied (2/14/1995). (Plaintiff belongs to class of interested beneficiaries; Legislature indicated intent to create civil remedy; and relief would be consistent with statutory purpose.)
The statutory leave also could be enforced through an employer’s policy as a breach of contract claim although it may not be very practical. The failure by a unionized employer to abide by a leave provision in a collective bargaining agreement usually is subject to remedy through the grievance and arbitration provisions of the bargaining agreement. Employees who abuse their time-off rights could be subject to disciplinary action.
The law does not address time off for early voting since it only applies to “the day of the election.” It also does not cover other electoral activities such as participating in campaigns, door knocking, attending campaign events, or even attending party caucuses.
Marshall H. Tanick
Hellmuth & Johnson, PLLC