Two compliance challenges are lurking for employers in early November and, although neither should come as a surprise, both warrant reminders.
Jump Back, Pay Up
The first hurdle is near, and employers should be aware that employees working an early morning shift Sunday, Nov. 5, may have worked an extra hour after clocks are set back at 2 a.m., when daylight saving time ended and standard time resumed.
The extra hour may have resulted in unplanned overtime for workers covered by the federal Fair Labor Standards Act, and such workers must be compensated for the extra hour of work.
Arizona, Hawaii, Puerto Rico, the U.S. Virgin Islands, and American Samoa do not observe daylight saving time. Employers in states and territories that observe daylight saving time should mark their calendars for March 11, 2018, when clocks are set ahead by one hour, ending standard time.
The second hurdle is days away. Although elections are occurring throughout 2017 to fill various elected offices, on Nov. 7, off-year elections are to be held to replace a Utah representative who resigned in the 115th Congress, to select New Jersey and Virginia’s next governors, and to fill a Washington senate seat.
Reminders aplenty advised employers of voting-leave laws ahead of Nov. 7, 2016, when voters selected the next U.S. president, 34 U.S. senators, 435 U.S. representatives, 12 governors, and decided many state and local contests, but fewer reminders may be expected to accompany this year’s elections.
Nonetheless, employers must be cognizant of their voting-law requirements.
Federal law does not require private employers to provide workers with voting leave, but many states and some localities require that employers provide workers time off to vote. More than half of states have laws requiring employers to provide voting leave, of which more than 20 states require employers to pay employees for such leave time.
Usually, voting-leave laws require that employers provide two or three hours of time off in which eligible employees may vote in general federal and state elections.
New Jersey, Utah, Virginia, and Washington—the states with Nov. 7 elections in 2017—represent the array, and absence, of voting-leave laws.
New Jersey does not have a law that requires employers to grant employees leave to vote, paid or unpaid.
Utah requires employers to allow employees to take up to two hours of leave to vote on election day, between the time polls open and close, unless they have three or more nonwork hours to vote between the time polls open and close.
Utah employers must grant employee requests for voting leave at the start or end of the employee’s shift, but employees must request voting leave before Election Day. Employers also cannot make deductions from employees’ usual salary or wages because they take voting leave.
Virginia also does not have a law that requires employers to allow employees leave to vote, paid or unpaid; however, state law does require employers to provide employees time off to serve as an election officer if the employee gives the employer reasonable notice for the need to take leave.
The amount of leave that employers must grant workers who serve as election officers is not specified, but employers cannot require such workers whose service lasts at least four hours, including travel time, to work an employment shift that begins on or after 5 p.m. on the day of election service or before 3 a.m. on the day following election officer service.
Employers that violate these voting and election requirements may be fined up to $500.
Washington, a vote-by-mail state, repealed the requirements that allowed employees to take up to two hours of time off to vote.
Employers should review laws where they have employees to decide what to include in a voting-leave policy, such as what elections are covered, the amount of leave needed, what times polls are open, whether pay is required, whether overtime is required, what notices are required, whether proof of having voted is required, and whether there is a requirement to post a notice.
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