Voting - Time Off

  1. Assuming that an employee has not already voted in early voting, the employee is entitled to take paid time off for voting on election days, unless the employee has at least two consecutive hours to vote outside of the voter's working hours - see Sections 276.001 and 276.004 of the Texas Election Code.

  2. No Texas court cases address those statutes. The following four Texas Attorney General opinions address the matters of time off to vote and pay for such time:

    1. GS-6242 (1944) - an employee is entitled to a reasonable amount of time off from work in order to vote, and the employer can even prescribe what hours the employee will have off, as long as the time is reasonable and sufficient to allow the employee to vote, but the provision requiring the employer to pay the employee for the time so taken is unconstitutional. This latter holding was overruled by AG opinion PD-1475 in 1952 - see below.

    2. PD-1475 (1952) - based upon a decision of the U.S. Supreme Court in Day-Brite Lighting, Inc. v. State, 72 S.Ct. 405 (1952), the Attorney General overruled in part the prior opinion in GS-6242 by holding that the statute in question is a valid exercise of the state's police power, and it does not violate either the Texas or U.S. Constitution to require an employer to pay employees for time taken off from work for the purpose of voting.

    3. PD-1532 (1952) - this ruling clarified PD-1475 by holding that paid voting leave is required only if the employee does not have sufficient time to vote outside his working hours (at least two consecutive hours).

    4. CM-0053 (1967) - the law does not require an employee to be given paid time off to vote while working overtime hours that he had voluntarily requested.

  3. Bottom-line considerations:

    1. Let employees have at least two hours off to vote on an election day (unless they have already voted under early voting procedures).

    2. Such time off needs to be paid to the extent that it cuts into the employee's normal working hours (PD-1532).

    3. Such time off does not need to be paid if the two hours are available outside of normal working hours (PD-1532).

    4. If the time is taken off from mandatory overtime, the time off should be paid at the rate that would have applied to the time so missed (CM-0053).

    5. If the time is taken off from optional overtime voluntarily requested by the employee, the time off does not need to be paid, since the time off would be outside of normal working hours and is time that the employee voluntarily chose to spend working rather than voting (CM-0053).

  4. Attendance at state or local political conventions is job-protected leave, but such time off does not have to be paid - Section 161.007(b) of the Texas Election Code provides that "penalty" does not include "a deduction for the actual time of absence from work."

  5. No written authorization is needed to not pay an hourly employee for time not worked while attending a political convention, but if unpaid convention leave is deducted from an employee's salary, such a deduction would need to be authorized by the employee in writing under the Texas Payday Law (see item 12 in the sample wage deduction authorization agreement in this book).

  6. Deductions for unpaid convention leave from the salary of an exempt salaried employee would be more complicated - full days missed could be deducted on a pro rata basis, but not partial days, and any such deductions would have to be authorized by the employee in writing as noted immediately above - for details on the DOL regulations pertaining to deductions from an exempt employee's salary, see "Salary Test for Exempt Employees" in this book.

  7. Deductions from available paid leave balances are allowed - see "Salary Test for Exempt Employees" in this book.

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