Voting Booth Selfies and Other Prohibited Conduct: An Election Day Primer for Employers

October 31, 2016 Meira Ferziger

To read the article in Hebrew, click here.

As one of the most heated elections in United States history approaches, employers should be sure to act in compliance with their responsibilities and duties when it comes to their employees:

  1. Although the highly charged nature of the current election makes political banter almost inevitable in the workplace, individuals in supervisory positions should be cautious with respect to their tone and words when discussing politics with their co-workers. A number of states actually have laws which specifically prohibit employers from circulating notices or discussing the implications of a particular candidate’s election victory on the workplace. For example, in some states, it would be illegal for the CEO of a company to announce that if a particular candidate wins, the company will “need to cut its workforce by 10%”- the rationale being that such comments are likely to influence a voter’s choice of candidate.
  1. In the same spirit of protecting voter independent decision-making, many states prohibit voters from taking photographs of themselves in or near voting booths, and certainly from taking photographs of their ballots. The act of taking such photographs qualifies as a felony in some states, punishable by prison time, while other states impose a fine. The photograph laws were originally crafted to protect against vote-buying –i.e., from having voters take pictures of their ballots in order to prove that they voted for a particular candidate and then receive compensation for their vote. In light of restrictions against taking such photos, employers should not encourage employees to take or post pictures of employees voting, whether on a work WhatsApp group or other public forum, or to send pictures of this nature to coworkers to “show” that an employee has voted, even if the intent is to simply demonstrate a company’s allegiance to democratic values.
  1. Most states have laws giving employees the right to take time off from work in order to vote, if an employee’s work schedule will make voting practically difficult or impossible. In some states the time off must be paid, while in other states employers are not required to pay employees for such time taken off from work. In New York, for example, employees who do not have “sufficient time” outside of working hours during which to vote must be allowed to take up to two hours of paid time off from work to do so, although an employer may designate the employee’s voting time off at the beginning or end of a work shift. Employers should therefore be aware of any legal obligations they may have with respect to giving their employees time off to vote on Election Day, and should make relevant accommodations with respect to employee work schedules.
  1. Some states require employers to post a notice informing employees of their right to take time off from work to vote. Many employers post such notices year-round along with minimum wage and other required notices, and in such cases no new notice is required for the upcoming election. Notices of this nature can be easily downloaded from state websites and should be posted in a public area of the workplace as soon as possible, as many states that have a posting requirement impose this obligation on employers as early as ten working days prior to Election Day- for example, in California http://elections.cdn.sos.ca.gov//pdfs/tov-english.pdf, and New York http://www.elections.ny.gov/NYSBOE/elections/AttentionEmployees.pdf.

The above issues vary from state to state. To understand whether such issues affect your workplace, please contact Meira Ferziger at mferziger@swalegal.com.

Meira Ferziger is the head of the labor and employment practice at Schwell Wimpfheimer & Associates and has significant experience in drafting policies, agreements, employee handbooks and guidelines in compliance with U.S. federal and state law. Meira functions as an integral part of the day to day operation of corporate clients by counseling them through their employment-related practices and decisions, and also advises clients as to employment issues that arise from corporate transactions, such as restructurings and acquisitions.

Meira can be reached at 646 328 0794 or mferziger@swalegal.com

This SWA publication is intended for informational purposes and should not be regarded as legal advice. For more information about the issues included in this publication, please contact Meira Ferziger. The invitation to contact is not to be construed as a solicitation for legal work. Any new attorney/client relationship will be confirmed in writing.