Leaves Taken to Vote

Much like a California citizen's right and obligation to take a leave of absence from work for Jury Duty, under certain circumstances California citizens also have the right to take a leave of absence from work to vote in any statewide government election. The right to vote is paramount to our country's system of governance, as without it, our government would not be composed by the voice of the people and would not be run by peers elected by the people. Employees, therefore, must be permitted to vote in statewide government elections each time they choose to do so.

Of course, most of the time, people will be able to find sufficient time to vote outside of their workday. However, certain people may find themselves unable to afford time to make the trip to a voting location. Perhaps these people are working exceptionally long shifts on voting day, or perhaps some force outside of their control prohibits them from traveling to a voting location during their leisure time.

In these situations, if the employer refuses to allow the employee a leave from work in order to exercise her right to vote, then the employer has violated that right and in effect has interfered with the American voting process. Thankfully, the employee in that situation is protected by the California Elections Code.

California Elections Code section 14000 requires employers to honor the needs of employees to take time off from work in order to vote in the event that there is insufficient time to vote outside of work hours. In particular, it provides:

• If an employee does not have "sufficient time outside of working hours to vote at a statewide election, the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote."
• An employee cannot take more than two hours of leave for voting without loss of pay. The time "off for voting shall be only at the beginning or end of the regular working shift."
• If the "employee on the third working day prior to the day of election, knows or has reason to believe that time off will be necessary to be able to vote on election day, the employee shall give the employer at least two working days' notice that time off for voting is" needed. California Elections Code section 14000.

Due to this statute, the employee is not only allowed to request or take a leave in order to vote when she does not have sufficient time outside of work hours to do so, but she may also exercise her right to vote without fear of retaliation, repercussion, or discrimination from her employer.

Employers are required by law to take measures to notify employees of their rights under section 14000. “Not less than 10 days before every statewide election, every employer shall keep posted conspicuously at the place of work, if practicable, or elsewhere where it can be seen as employees come or go to their place of work, a notice setting forth the provisions of Section 14000.” California Elections Code section 14001. Polls are generally open from 7:00 a.m. to 8:00 p.m. To facilitate compliance with section 14001, free, print-ready notices to employees and employers regarding employee time off for voting are available at the California Secretary of State website in English and nine other languages. 

A related law, California Elections Code section 14004, states that “An employer shall not require or request that an employee bring the employee’s vote by mail ballot to work or vote the employee’s vote by mail ballot at work.” Employers cannot insist that employees vote by mail as opposed to voting in person. “An employer who violates Section 14004 shall be subject to a civil fine of up to ten thousand dollars ($10,000) per election.” California Elections Code section 18503.

California Elections Code sections 14000, 14001, and 14004 apply to both public employers and employees as well as employers and employees in private industry. California Elections Code section 14002.

An unpublished case, Godfrey v. Department of Corrections and Rehabilitation, is instructive on under what circumstances a court might find that a voter does have sufficient time outside of working hours to vote at a statewide election and thus the employer is not obligated to provide an employee with time off from work to vote.

On November 6, 2012, Godfrey asked his supervisor for two hours off to vote. The supervisor denied the request. Pursuant to California Elections Code section 14000, California Department of Corrections and Rehabilitation (CDCR) policy was to allow employees to take two hours to vote if they did not have sufficient time outside of work hours. The supervisor believed that Godfrey had sufficient time to vote because his shift ended at 3:30 p.m., while polls closed at 8:00 p.m. No other employee supervised by the supervisor in question whose shift ended at 3:30 p.m. received paid time off to vote.

Godfrey brought a claim of retaliation regarding CDCR’s refusal to give him two hours paid time off to vote. Court of Appeal, Third District ruled that Godfrey failed to raise a triable issue as to his claim of retaliation, as Godfrey provided no evidence to counter the CDCR’s legitimate, nonretaliatory reason that Godfrey had sufficient time to vote without time off, given that his shift ended at 3:30 p.m. and the polls closed at 8:00 p.m. In addition, the supervisor did not give any other employee with the same shift paid time off to vote. Godfrey offered no admissible evidence to contradict this explanation.

Note that if you are registered to vote in a County that has adopted the Voter’s Choice Act Elections Model, it is unlikely that your employer will be obligated under California Elections Code section 14000 to allow you to take time off from work to vote. The California Voter’s Choice Act (Senate Bill No. 450), approved by the Governor on September 29, 2016, makes it easier to vote outside of work hours. In participating counties, every registered voter receives a ballot 28 days before an upcoming election. Voters may (i) return their ballot by mail, (ii) drop the ballot in a secure county ballot drop box, or (iii) visit any vote center in the county. Traditional polling places are replaced by vote centers. Voters may cast a ballot in-person at any ballot center in the county; voters are no longer required to cast their votes at a specific polling place. Starting ten days before the election and going through the Friday before the election day, one vote center is required for every 50,000 registered voters. On election day and the Saturday, Sunday, and Monday before Election Day, one vote center is required for every 10,000 registered voters.

If you have not been granted a leave in order to fulfill your constitutional right to vote, or if you have experienced negative treatment or termination from having taken a leave at your workplace in order to vote, contact the experienced attorneys at Kokozian Law Firm, APC. Please ask about our free initial consultation.