California employers are required by the state's Elections Code to provide up to two hours of paid time off for employees who need time to vote in government-sanctioned elections. And, employees who want to avail themselves of the right to vote on company time must give reasonable notice of their desire to do so to their employer.
If such employees need more than two hours to get to their own polling place, to vote, and to return, employers must give them the time off to do that. But, employers need not give non-exempt employees more than two hours of paid time off for these "rites of citizenship." Of course, an employee is entitled to pay for the extra time (beyond two hours) if he or she chooses to use accrued vacation time, personal time off, or something similar.
Certain Voting Rights Rules Affect Only White Collar Employees
On the other hand, California employers must pay exempt white-collar employees (i.e., qualifying executive, administrative, and most professional employees) for voting leave if they take off less than a full workday. However, these same employers need not pay exempt white-collar employees for leave that covers a full workday. (This is true because these employees may lose their exempt status if their salaries are subject to certain deductions.) Note: This rule requiring pay for partial days off applies only to qualifying exempt white-collar employees, not all exempt employees. And, although California employers may not dock white-collar employees' salaries for less than a day, they may be able to subtract the time off from employees' accrued paid time off.
Legal consequences of Non-compliance with the Provisions of the California Elections Code
The legal consequences of non-compliance with the provisions of the California Elections Code that were described generally, above, can be serious. If employers illegally fire employees for taking time off to vote, employees may sue for wrongful discharge. If such employees are successful, employers may be liable for employees' lost wages, work benefits, emotional distress, legal costs, and punitive damages.
And, it's a misdemeanor -- a crime -- if employers fail to provide time off for employees to vote, or fail to post a state voting notice. If convicted, an employer may be fined up to $1,000, imprisoned for up to three years, or both.
Other Considerations when Dealing with the Interaction between CA Voting Rights Laws and Other Workplace Laws
Although employers aren't required by California law to pay non-exempt employees for more than 2 hours of voting time, some employers do so anyway, feeling it is the right thing to do and believing it promotes good citizenship. If employers do choose to pay employees for the extra time off, they may pay them any amount they choose. Employers may pay employees only their "base rate" or even pay them at a lower rate. If they do pay an extra amount (in excess of the required-by-law two hours), the amount that they pay is not included in non-exempt employees' regular rate for overtime purposes. This is true because an employee's regular rate only includes pay for hours that the employee actually worked. And, time off for voting is not considered "work time" (i.e., hours worked) when figuring overtime hours for non-exempt employees.
This Memorandum was prepared by California attorney Michael J. Tonsing of San Francisco. It is accurate as of the time of its writing, February 16, 2011.
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