Oct 24

Paid Time Off to Vote: A Political “Party”

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Vote - Stupid VotersLos Angeles sets new records all the time – for low voter turnout. Only 16% of the city’s 1.8 million registered voters bothered to vote in the November 2014 statewide elections. The city’s record low turnout helped L.A. County claim first prize as the county with the lowest turnout in the state.[1] But voter turnout in the March 2015 L.A. municipal election was even worse: only 8.6% of the city’s registered voters cast a ballot.[2] Undoubtedly, the  city’s worsening traffic is leaving L.A. residents with less and less time to vote either before or after work. But L.A. employees have no excuse not to vote. L.A. is one of the few cities where employees have the right to take paid time off from work to vote in both statewide and municipal elections.

I.  Taking Time Off to Vote in a Statewide Election

Vote - I Only Got to Vote OnceElection Code section 14000 permits an employee who lacks “sufficient” time outside of working hours to vote in a statewide election to take off “enough” working time that, when combined with “available” voting time outside of working hours, will enable him to vote.[3] The law specifies that “no more than” two hours of time off “shall be” without loss of pay.[4] That, however, doesn’t mean an employee only gets two hours off; the proper amount of time off is whatever is “enough” to enable him to vote. The time off must start at the start or end of his shift, whichever allows him the most time to vote and the least time off from the shift, unless he and his employer agree otherwise.[5] Section 14000 requires an employee and employer to give each other specific notices.

A.   Notice by Employee of the Need for Time Off to Vote

The employee can’t just clock out without saying anything before he goes to vote. If he “knows or has reason to believe” by the third working day before Election Day that he will need time off to vote (presumably because he knows or has reason to believe he’ll lack “sufficient” voting time outside of working hours), he must give his employer at least two working days’ notice of his need for time off.[6] In other words, an employee who works learns by the Thursday before Election Day Tuesday (i.e., three working days before Election Day) that he will need time off to vote must tell his employer no later than Friday (i.e., two working days’ notice before Election Day) that he needs time off.

In many cases, an employee will “know or have reason to believe” weeks ahead of Election Day whether he will need time off to vote. The polls open at 7:00 a.m. and close at 8:00 p.m. Even L.A. residents who have to leave the house at 7:00 a.m. to get to work at 8:00 a.m. will have plenty of time after work to vote. For the average employee who works 8:00 a.m. to 5:00 p.m., the three-hour window between the end of his shift and the closing of the polls will be more than “sufficient time outside of working hours” to vote – especially in a primary. You don’t have to be Nostradamus to know that voter turnout in a California primary will be abysmal. In the June 2014 primaries, California set a record-low 25.2% turnout. [7]

But the general election is another ball of wax. In some cases, turnout is impossible to predict – even in low-turnout L.A. County. In the 2008 election, a voter didn’t have to watch Sunday morning talk shows to know that turnout was going to be heavy. But few people predicted that 79.4% of L.A. County registered voters would turn out.[8] In super-low-turnout Norwalk, early voters waited in line for up to five hours – three days before Election Day.[9] Just two years later, however, turnout in L.A. County fell sharply: just 53% of registered voters turned out.[10] In a general election, then, an employee might not “know or have reason to believe” within three days of Election Day whether he will need time off to vote.

But the question of whether an employee “needs” time off to vote might soon become moot. Vote-by-mail (VBM) ballots are increasingly popular.[11] In fact, the law allows a county registrar to shut down all polling places in a precinct and provide each voter in the precinct with VBM ballot if fewer than 250 people in that precinct are registered to vote by the 88th day before the election.[12] Two tiny California counties, Alpine and Sierra, which have relatively high turnout but few voters, have abolished polling places and switched to all-mail voting. In those counties, employers can prove as a matter of law that their employees won’t need any time off to vote. Even in L.A., however, an employee always has option to cast a VBM ballot.

B.   Notice by Employer of the Right to Time Off to Vote

Vote - Hanging Chad 2No court has decided whether the availability of VBM ballots mean an employee never “needs” time off to vote in a statewide election. In any case, the law still requires an employer must post a “conspicuous” notice setting forth all of the provisions of Election Code section 14000 “not less than” 10 days before Election Day.[13] (Presumably, the notice must stay up until the polls close.) The employer must post the notice at the employees’ place of work, if practicable, or elsewhere where employees “can” see it as they “come or go to their place of work.”[14] But what that means isn’t clear. For example, an employer might be able to post the notice in the parking lot if that’s where employees “can” see it as they “come or go to their place of work.”

Many small employers don’t bother to post this notice (or any other notice) at all. But the law doesn’t permit an employee to recover a penalty against an employer for failing to post the notice. The only mechanism by which an employee can recover civil penalties – the Labor Code Private Attorneys General Act (PAGA) – only authorizes an employee may recover civil penalties for the violation of a Labor Code provision.[15] Presumably, an employee who suffers a cut in pay, wrongful termination, or other adverse employment action because he took time off to vote or gave insufficient notice of his need to take time off to vote might be able to use an employer’s failure to post a conspicuous notice as evidence to support his case.

II.  Taking Time Off to Vote in a Los Angeles Election

Vote - Hanging Chad 3Section 112 of the L.A. Municipal Code is almost identical to Election Code section 14000 but differs from Section 14000 in a couple of respects. First, Section 112 provides that an employer need only grant time off to vote to a “registered voter.” That might seem like a difference without a distinction. But the same-day voter registration law (the implementation of which the Secretary of State has delayed until 2016 at the earliest) might change that. Under Election Code section 2107, a citizen can register to vote at any time before “any election.” Thus, even if an unregistered voter can ultimately vote on Election Day, his employer might not have to give him time off, as the employee won’t yet a “registered voter” at the time of his request for time off.

Second, Section 112 applies in any primary, general, or special election that takes place within “the City” (i.e., L.A.).[16] The elections must be for L.A. Mayor, Controller, City Attorney, City Councilman, or Board of Education member.[17] For obvious reasons, Section 112 doesn’t entitle an employee to take time off to vote in a special election to replace a City Councilman from a district in which the employee doesn’t live. But Section 112 permits employees “registered outside the limits of the City who are employed in the City” to take time off to vote in “any election” in which they are “entitled” to vote.[18] The meaning of that clause is unclear, however, as “any election” means “any L.A. election”; and a non-L.A. resident isn’t “entitled” to vote in an L.A. election.

References

[1] John Wildermuth, L.A.’s Reluctance to Vote by Mail Hurting Candidates, Causes, SF GATE (Jan. 11, 2015).

[2] Lydia O’Connor, “Dismal” Doesn’t Even Begin to Describe L.A’s Voter Turnout, HUFFINGTON POST (Mar. 4, 2015).

[3] Elec. Code §14000(a).

[4] Elec. Code §14000(b).

[5] Id.

[6] Elec. Code §14000(c).

[7] Christopher Cadelago, Primary Election Turnout Headed for Record Low, SACRAMENTO BEE (June 6, 2014).

[8] Rick Orlov, Election 2014: Los Angeles County Sets Record Low for Voter Turnout, L.A. DAILY NEWS (Nov. 5, 2014).

[9] Bob Pool, L.A. County’s Early Voters Don’t Escape the Lines, L.A. TIMES (Nov. 2, 2008).

[10]

[11] Elec. Code §3003.

[12] Elec. Code §3005.

[13] Elec. Code §14001.

[14] Elec. Code §14001.

[15] Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348, 387 (2014).

[16] LAMC §112(a)(1).

[17] Id.

[18] LAMC §112(b).

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.