No More Hanging Chads, Just Long Lines:
Employee Voting Leave on Election Day
*By Jason Rossiter

November 4, 2008 is Election Day throughout the nation and Ohio. This year, over 666,000 new voters have registered in Ohio – an increase of almost 9% from January, 2008. State election officials predict a record turnout of 80% which will likely result in long lines and long waiting times at the polls. Employees who experience long waiting times to vote could be tardy to work or take time off during their workday to vote. What course of action may an employer take under these circumstances?

Ohio Revised Code §3599.06 prohibits employers from discharging or threatening to discharge an employee for taking a “reasonable amount of time to vote.” Further, this law prohibits employers from inflicting or threatening to inflict any injury, harm, or loss against employees to induce an employee to vote or refrain from voting. Employers who violate this law are subject to a fine ranging from $50 to $500, enforceable by the Ohio Elections Commission.

Deducting Pay for Employee’s Leave to Vote

Is an employer required to pay an employee for the time the employee was voting?

Ohio law does not explicitly require employers to pay their employees for the time they take off to vote. According to the Ohio Attorney General, employers do not have to pay hourly, commissioned, or piecework employees for leave taken to vote. However, according to the Ohio Attorney General, employers who deduct a salaried employee’s pay for leave taken by the salaried employee to vote, may violate Ohio law. Employers should review their pay practices to determine whether their pay practices are consistent with the Ohio Attorney General’s interpretation of Ohio Revised Code §3599.06.

Voting Before or After Work

Is an employer required to permit an employee to take leave to vote if the employee could have voted before or after work?

Generally, Ohio law requires employers to provide a reasonable amount of time to vote. Ohio law does not provide for any exceptions to this requirement, even when the employee can vote before or after work. Therefore, employers should provide employees leave to vote even when the employee can vote before or after work.

Wrongful Termination Claims and Ohio Election Law

Ohio has no recorded court cases where an employee has sued a former employer for discharging that employee for taking time off of work to vote. However, employers who discharge employees for taking leave to vote may be subject to a cause of action for wrongful discharge in violation of Ohio public policy. Ohio Revised Code §3599.06 appears to provide a clear statement of public policy which may lack a comprehensive remedy to discharged employees. While there are no recorded court cases on this issue, a court faced with this issue may find that an employee is entitled to bring a cause of action for wrongful discharge in violation of Ohio public policy.

*Jason Rossiter has extensive experience in all aspects of workplace law, including wrongful discharge litigation. For more information about wrongful termination, please contact Jason at 216.696.4441 or bjr@zrlaw.com.

This newsletter is not intended as a substitute for professional legal advice and its receipt does not constitute an attorney-client relationship. If you have any questions concerning any of these articles or any other employment law issues, please contact Stephen S. Zashin at 216.696.4441.
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