It’s Election Time Again

One of our most important civil rights is the right to vote for individuals who will represent us in federal, state, and local government. Wisconsin affords employees a variety of protections related to voting and adverse employment actions based on their political choices. With the upcoming Novem­ber elections just around the corner, it’s im­portant to know what you, as an employer, can and cannot do.

Time Off to Vote

Wisconsin law provides that any employee who is entitled to vote in an election is entitled to be absent from work for a maximum of three successive hours for the purpose of voting when the polls are open. The employee must notify the employer of his intended ab­sence before Election Day, and the em­ployer may designate the time of day for the absence.

An employer may not penalize an employee for absences authorized by law other than deductions from his pay­check for time lost. The law applies to all Wisconsin employers, including gov­ernmental employers.

Employer Threats, Promises, or Bribes

Wisconsin law also prohibits any employer from threatening to discharge an employee, threatening to reduce her wages, or promising to pay her higher wages in an attempt to influence the employee to give or withhold her vote in an election. Wisconsin’s election bribery law prohibits employers from giving or promising any office of employment or privilege of any office of employment to induce a voting employee to:

1. Go to or refrain from going to the polls;
2. Vote or refrain from voting;
3. Vote or refrain from voting for or against a particular person; or
4. Vote or refrain from voting for or against a particular referendum.

An employer may, under this sec­tion of Wisconsin law, give employees all or part of an election day off as a paid holiday as long as the employer’s policy is uniformly applicable to all similarly situated employees.

Election Restrictions on Employers

Wisconsin has a separate law that contains a number of specific election-related prohibitions on employers. First, you are prohibited from refusing an employee the privilege of time off for voting or subjecting the employee to any penalty for exercising that right. This law gives some teeth to the related “time off for voting” law.

Second, the election restrictions law prohibits you from refusing to allow an employee to serve as an election of­ficial. You may not make threats or offer inducements of any kind to the employee for the purpose of preventing him from serving as an election official.

Third, the election restrictions law prohibits you or your agents from distributing to employees any printed matter containing a threat or notice stating that if a particular ticket of a political party or organization or candidate is elected or a particular referendum question is adopted or rejected, work in your place of business will cease in whole or in part, the place of business will be closed, or employees’ salaries or wages will be reduced. This provision further prohibits any other threats intended to influence employees’ political opinions or actions.

Finally, the election restrictions section of the law prohibits you from taking any adverse employment action against an em­ployee for failing to make a contribution to a particular candi­date or a political party or for supporting, or failing to support, a particular referendum.

Political Affiliation Discrimination Laws

Although federal law doesn’t specifically include politi­cal affiliation as a protected class, some municipalities do. For example, the city of Madison prohibits an employer from dis­criminating against an employee on the basis of his political affiliation.

As election time approaches, it isn’t uncommon for employ­ees to discuss political events, candidates, or referendums to the extent that their employer becomes aware of their political af­filiations. You should be cautious about making flippant com­ments regarding employees’ political leanings. The employment actions covered by equal employment opportunity ordinances addressing political affiliation discrimination, such as Madi­son’s, are similar to those covered by other discrimination laws. For example, you may not refuse to hire or promote, discipline, or discharge an employee because of her political affiliation.

Public Employees’ Rights

Although treatises have been written on public employees’ First Amendment protections both for political speech and po­litical affiliation, a good general rule to live by if you are a public employer is, unless your employee is a fairly high-level policy maker, her political affiliation shouldn’t be the basis for employ­ment decisions such as discipline or termination.

Bottom Line

Election season is always exciting, and it tends to bring about spirited debate and discussion in the workplace. Although political affiliation isn’t a protected class for private-sector em­ployees under federal or state law, employment decisions based on political affiliation as it relates to the election process can give rise to employer liability. Here are a couple simple rules to follow:

• Allow employees unpaid time off to vote when they make timely requests.
• Allow employees to serve as election officials if they ask.
• Do not request that your employees make a contri­bution to a particular political party or candidate or in support of or against a referendum on the ballot.
• Do not threaten your employees that unless they vote for a particular candidate or party, or vote a cer­tain way on a referendum, you will close your busi­ness, reduce wages, or take similar actions.

Remember, this too shall pass—until the next election.

This article was featured in the October 2014 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

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