With in-person national, state and local partisan voting set for Tuesday, November 3, 2020, it is timely for employees and employers to review Wisconsin law with respect to voting rights.
An employer must allow an employee to be absent from work to vote in a political election for up to three consecutive hours while the polls are open, if the employee requests such time off before the day of the election. However, the employer may decide the time of the workday for such an absence. The employee is not entitled to be paid for the time away from work but depending on workplace rules (check the employee handbook), the employee may substitute paid time off for time that is otherwise unpaid.
For this election, registered Wisconsin voters may request an absentee ballot. Due to the growing popularity of voting by absentee ballot, it may be that employers experience fewer requests by employees for leave to vote on the day of the election. An employer may request an employee who requests to leave to vote on election day to certify that he or she has not voted by absentee ballot.
An employer is prohibited from penalizing an employee who is absent from work to vote after making previous arrangements with the employer to vote.
May an employee take an unpaid leave of absence from work to work as an election official?
Wisconsin law requires every employer to grant an unpaid leave of absence to each employee who is appointed to serve as an election official, as long as the employee who is serving as an election official provides his or her employer with at least seven days’ notice. The leave is for the entire 24-hour period of each election day in which the employee serves in his or her official capacity as an election official. Upon the request of any employer, a municipal clerk must verify such appointment. In this instance, an employee who wishes to serve as an election official must notify the employer of such appointment no later than October 26, 2020.
Employers may not use threats of discharge, threats of compensation reduction, promise compensation increases to influence exercise of an employee’s voting rights, discriminate against employees who refuse to participate in employer communications about political matters, or display or otherwise circulate communications containing threats to reduce compensation or conduct layoffs depending upon election results.
Wisconsin employers may not discriminate against employees because of their use of lawful products. Use of lawful products may be broadly defined in certain circumstances to include such things as blogging software, Twitter, political signage and other products used to speak. Therefore, an employer needs to consider all Wisconsin laws before it acts with respect to an employee who is exercising his or her voting or speech rights.
Under Wisconsin’s constitution, there is a right to free speech: “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right and no law shall be passed to restrain or abridge the liberty of speech or of the press. . .” However, this right of free speech applies to state/governmental action, not action by a private employer. Jacobs v. Major, 139 Wis. 2d 492 (1987).
For any questions that an employer or an employee may have with respect to workplace rules that affect employees’ right to vote, contact your employment lawyer or human resources professional.
