October 19, 2010

Minnesota "Time Off to Vote" Statute No Longer Limited to Mornings

With Minnesota's gubernatorial election just weeks away, Minnesota employers need to be aware of recent amendments to Minnesota's "Time Off to Vote" statute, Minn. Stat. § 204C.04. The statute requires employers to give employees time off with pay to vote in state primary or general elections, elections to fill Senate or House of Representative vacancies, and elections to fill state senator or representative vacancies. The statute states that employers may not "directly or indirectly refuse, abridge, or interfere" with an employee's rights under this statute; doing so can result in a misdemeanor. The statute was recently amended in important respects that may affect how employers schedule employees for work on election day.

Until recently, the statute required an employer to grant employees time off to vote during the morning of an election. During the 2010 legislative session, however, the Minnesota Legislature amended the statute to require employers to give eligible employees "the right to be absent from work for the time necessary to appear at the employee's polling place, cast a ballot, and return to work on the day of that election, without penalty or deduction from salary or wages because of the absence." Thus, according to the amendment, the required time off is no longer limited to the morning, but can occur at any time during the workday. Although courts have yet to address the meaning of the amendment, this new language, effective April 2, 2010, appears to give employers greater scheduling  flexibility, while at the same time creating some uncertainty.

First, all of an employer's employees plainly no longer have the right to be absent during the morning of the election, as was the case before the amendments. The amendment now says that employees have the right to be absent from work, but does not specify a time of day.  We believe this change, and the absence of any restriction on  the employer's right to coordinate multiple employees' requests for time off to vote, means that employers may reasonably coordinate the timing of multiple employees' requests for leave to vote.

Second, the amendment not only requires the employer to give an employee time off with pay to vote, but also time off with pay for the time spent  "return[ing] to work" after voting. Some might argue that this language indicates that an employer may not insist that an employee take the paid leave to vote at the beginning or end of the workday – because the employee would then not be getting paid for the time necessary "to return to work."  However, such an argument would (1) clearly not advance the patent purpose of the law, which is to provide employees adequate time to vote during work hours; and (2) unnecessarily restrict an employer's ability to staff its operations on voting days. This creates an issue as to whether a county attorney or judge will focus on the purpose of the law or its literal language.

While courts have yet to address this recent amendment, Minnesota employers should be aware of this new language and the effect that it might have this voting season on voting leave policies.          

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