*By Jason Rossiter
November 4, 2008 is Election Day throughout the nation and Ohio. This
year, over 666,000 new voters have registered in Ohio – an increase of
almost 9% from January, 2008. State election officials predict a record
turnout of 80% which will likely result in long lines and long waiting
times at the polls. Employees who experience long waiting times to vote
could be tardy to work or take time off during their workday to vote.
What course of action may an employer take under these circumstances?
Ohio Revised Code §3599.06 prohibits employers from discharging
or threatening to discharge an employee for taking a “reasonable amount
of time to vote.” Further, this law prohibits employers from inflicting
or threatening to inflict any injury, harm, or loss against employees
to induce an employee to vote or refrain from voting. Employers who
violate this law are subject to a fine ranging from $50 to $500,
enforceable by the Ohio Elections Commission.
Deducting Pay for Employee’s Leave to Vote
Is an employer required to pay an employee for the time the employee was voting?
Ohio law does not explicitly require employers to pay their
employees for the time they take off to vote. According to the Ohio
Attorney General, employers do not have to pay hourly, commissioned, or
piecework employees for leave taken to vote. However, according to the
Ohio Attorney General, employers who deduct a salaried employee’s pay
for leave taken by the salaried employee to vote, may violate Ohio law.
Employers should review their pay practices to determine whether their
pay practices are consistent with the Ohio Attorney General’s
interpretation of Ohio Revised Code §3599.06.
Voting Before or After Work
Is an employer required to permit an employee to take leave to vote if the employee could have voted before or after work?
Generally, Ohio law requires employers to provide a reasonable
amount of time to vote. Ohio law does not provide for any exceptions to
this requirement, even when the employee can vote before or after work.
Therefore, employers should provide employees leave to vote even when
the employee can vote before or after work.
Wrongful Termination Claims and Ohio Election Law
Ohio has no recorded court cases where an employee has sued a
former employer for discharging that employee for taking time off of
work to vote. However, employers who discharge employees for taking
leave to vote may be subject to a cause of action for wrongful discharge
in violation of Ohio public policy. Ohio Revised Code §3599.06 appears
to provide a clear statement of public policy which may lack a
comprehensive remedy to discharged employees. While there are no
recorded court cases on this issue, a court faced with this issue may
find that an employee is entitled to bring a cause of action for
wrongful discharge in violation of Ohio public policy.
*Jason Rossiter has extensive experience in
all aspects of workplace law, including wrongful discharge litigation.
For more information about wrongful termination, please contact Zashin & Rich at
216.696.4441.
