Do I Need To Give Employees Time Off To Vote?

*By Stephen S. Zashin

With the 2010 elections just a week away, many employers wonder if they must give employees time off to vote. Most states require that employers provide time for employees to vote on Election Day. Because no federal law requires private employers to grant employees leave time to vote, the laws vary from state to state. The laws vary greatly – some specify whether the employer must provide paid time off while others only specify how many hours the employer must provide.

In general, most employers will need to provide time to vote if the polls are not open within two to three hours of the employee's scheduled shift. Is your company required to give employees time off to vote?

• The following states require employers provide voting leave and require a specific amount of time the employer must provide to vote: Alabama (up to one hour), Alaska (two hours) Arizona (three hours), California (two hours), Colorado (two hours), Georgia (two hours), Hawaii (two hours), Illinois (two hours), Iowa (up to three hours), Kansas (up to two hours), Kentucky (at least four hours), Maryland (up to two hours), Massachusetts (up to two hours), Missouri (up to three hours), Nebraska (two hours), Nevada (up to three hours), New Mexico (two hours), New York (two hours), Oklahoma (at least two hours), South Dakota (two hours), Tennessee (up to three hours), Utah (two hours), Washington (up to two hours), West Virginia (up to three hours), Wisconsin (up to three hours), and Wyoming (one hour)

• The following states require employers provide voting leave, but do not specify the amount of time required: Arkansas, Minnesota, Ohio, and Texas.

In many states, employers can specify the time an employee may vote. For example, Colorado and Utah provide that the employer may require the time to vote be at the start or end of a shift. California has a similar provision for voting time.

• The following states allow employers to designate voting hours: Alabama, Arizona, Colorado, Georgia, Illinois, Iowa, Kansas, Kentucky, Massachusetts (limited to certain employers), Missouri, Nebraska, Nevada, New York, Oklahoma, South Dakota, Tennessee, Utah (limited to certain employers), Washington, Wisconsin, Wyoming. 

In some states, employers must pay its employees for taking time off to vote. The qualifications and conditions employees must meet vary from state to state.

• Paid leave for voting exists in 23 states, including: Alaska, Arizona, California, Colorado, Hawaii, Illinois, Iowa, Kansas, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia and Wyoming. 

• Seven states do not require paid time off: Alabama, Arkansas, Georgia, Kentucky, Massachusetts, Ohio, and Wisconsin. 

Some states also have specific requirements that an employee must follow to request the leave. 18 states currently require employees to give advance notice.

• States that require advance notice include: Alabama (reasonable notice), Arizona (one day), California (two workdays), Colorado, (one day), Georgia (reasonable notice), Illinois (one day), Iowa (one day), Kentucky (at least one day), Massachusetts (one day), Missouri (one day), Nebraska (one day), Nevada (one day), New York (two to ten days), Oklahoma (one day), Tennessee (by noon before Election Day), Utah (one day), West Virginia (three days), and Wisconsin (one day). 

If your company’s employees have not requested voting leave already, be prepared for many of them do to so. Employers should first investigate the applicable laws where the company does business. In most instances, employers should contact counsel if it has questions about employee leave time to vote and whether the employer is required to pay for such time off.

*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience in all aspects of workplace law, including questions about employee leave. For more information about employment law, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.

Massachusetts Law Requires Employees Receive Notice of Negative Information in Personnel Records

By Patrick M. Watts

Massachusetts recently passed an amendment to their Personnel Records Statute (Mass. Gen. Laws c. 149, § 52C). Employers of 20 or more employees must notify employees when negative information is placed into personnel files.

The Office of the Attorney General will enforce this amendment and may set fines anywhere from $500 to $2,500 per violation. To date, no guidelines from the Attorney General have been issued.

Under Massachusetts law, an employee’s personnel record is defined by what it contains – not by where the records are kept. Formal personnel files maintained by Human Resources are contained within the definition. More problematic are more informal supervisor files and reviews which are also included in an employee’s “personnel record.”

The language within the amendment is broad and vague, leaving many employers confused over how to implement this change. The amendment requires employers notify employees within 10 days when “any information” is placed within an employee’s “personnel record” that “may be used” to “negatively affect” an employee’s qualifications. This includes anything that could negatively affect employment, including: promotion, transfer, compensation, or the possibility of disciplinary action. Employers must comply with an employee’s request for review within five days of the request.

Employees in Massachusetts have a right to review personnel records up to two times per year. However, if the notice is triggered, the employee’s review does not count in the two reviews permitted annually. Additionally, employees may seek judicial action to expunge any information from personnel records the employer knew or should have know was false.

Employers affected by this statute should examine their policies and practices to comply with the new amendment.

Nickel and Dimed – Ohio’s Minimum Wage Increases to $7.40 in 2011

*By Michele L. Jakubs

As part of a Constitutional Amendment approved by voters in 2006, Ohio’s minimum wage will increase by ten cents in January 2011. The Amendment provides for an indefinite increase every January 1st tied to the rate of inflation. After a stagnant year in 2009, inflation rose 1.4 percent in the 12 months ending August 31, 2010. This rise in inflation will increase the minimum wage by 10 cents in January.

Workers who are 16 years and older and do not receive tips will see an increase of ten cents to $7.40 per hour. Tipped employees will see an increase of five cents to $3.70 per hour. This new wage affects employers who gross more than $271,000 annually.

Employers who gross less than $271,000 annually will be required to pay the same as the federal minimum wage, currently set at $7.25 per hour. Employees who are 14- and 15-years old will also receive $7.25 per hour, regardless of company revenue.

If you have any questions about complying with these new wage increases, please contact Michele L. Jakubs.

*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience in all aspects of workplace law, including wage and hour compliance. For more information about employment law, please contact Michele at 216.696.4441 or mlj@zrlaw.com.

Sign of the Times: State of Economy Sees Explosion of EEOC Claims

*By Jon M. Dileno

More than 70,000 claims were filed with the Equal Employment Opportunity Commission (EEOC) for the six months leading up to April 2010, alleging various types of discrimination. This amounts to a 60% increase in claims filed for the same period last year. The dramatic increase in claims is likely a product of the economy, where more workers are being terminated and are also finding it more difficult to find jobs, thereby becoming more likely to sue.

One of the specific areas of increased claims are those based on disability discrimination. In 2009, more than 21,000 individuals filed disability-based claims with the EEOC, amounting to a 10% increase from 2008, and a 20% increase from 2007. Congress’ recent amendments to the Americans with Disabilities Act, wherein it expanded the definition of “disability,” have undoubtedly contributed to the increase in claims based on physical or mental disabilities.

The EEOC has also seen an increase in complaints generated by employees of Muslim faith. In 2009, Muslim workers filed a record 803 claims – an increase of 20% from the previous year. Muslims make up less than two percent of the U.S. population but account for about one-quarter of the religious discrimination claims filed with the EEOC. The EEOC has recently filed several lawsuits on behalf of Muslims. Additionally, the EEOC has seen a significant increase in complaints from males alleging sexual harassment and complaints from federal employees.

Given the protracted nature of our country’s economic downturn, complaints with the EEOC are not likely to subside anytime soon. In response, Employers need to make sure their work environments are free from discrimination by maintaining adequate policies and through the training and education of their workforce. To that end, Employers should consider whether their employment policies and training practices are in need of updating and review, in light of recent trends and developments in the law.

*Jon M. Dileno has extensive experience in all aspects of public and private sector workplace law, including defending contentious claims with the EEOC. For more information, please contact Jon at 216.696.4441 or jmd@zrlaw.com.

Put the Phone Down! The DOT Announces Hazmat Truck Drivers Banned From Texting

*By Stephen S. Zashin

The Department of Transportation (DOT) announced September 21, 2010, during the National Distracted Driving Summit, that the agency will implement a new rule banning commercial truck drivers from texting while transporting hazardous materials. The rule will also ban train operators from using cell phones or other wireless devices while working. Drivers cited for texting will be subject to civil or criminal penalties of up to $2,750.

The announcement comes as no surprise as the agency has begun to crack down on distracted driving. The DOT stated that nearly 5,500 people were killed and 450,000 injured in distraction-related crashes in 2009 alone.

These new rules complement additional rules being finalized by the Obama Administration that prohibit commercial bus and truck drivers from sending text messages on the job. Federal employees driving on government business are already prohibited from texting and 30 states currently ban text messaging for all drivers.

The DOT reports that nearly 1,600 companies have agreed to be part of a program to encourage private firms and groups to implement distracted driving policies. In addition, 550 organizations have already pledged to enact distracted driving policies for their employees. Both of these initiatives are estimated to cover twelve million U.S. workers within the next year.

If your company does not have a policy about employees driving while texting or talking on a cell phone, you should consider whether such a policy makes sense for your organization.

*Stephen S. Zashin, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience in all aspects of workplace law, including drafting workplace policies for employers. For more information about Ohio employment law, please contact Stephen at 216.696.4441 or ssz@zrlaw.com.

Employee Free Choice Act: It’s Back… Or Is It?

By Jessica Tucci

On August 11, 2010, the Arizona legislature approved a referendum that guarantees a worker’s right to vote in a secret ballot election when deciding whether to be represented by a labor union. The referendum will appear as Proposition 113 in Arizona’s next general election. Proposition 113, if approved by voters, will amend the Arizona Constitution by “guarantee[ing] the right to vote by secret ballot where local, state or federal law permits or requires elections, designations or authorizations for employee representation.”

Currently, the National Labor Relations Act (NLRA) requires a secret ballot election once a petition is filed with the National Labor Relations Board (NLRB). However, President Obama publicly supports the Employee Free Choice Act (EFCA) or card check, which allows the NLRB to certify a union as an exclusive bargaining agent if the union collects a majority of union authorization cards from a bargaining unit. As proposed, EFCA also requires binding arbitration of labor contract terms after only 90 days of negotiation. While EFCA failed to pass in 2009, opponents fear its rebirth with a potential swing of power in Congress looming. Legislation like Proposition 113 attempts to block EFCA’s card check provision but may not survive a legal challenge if a lame-duck Congress enacts EFCA.

In anticipation of a renewed effort to pass EFCA, employers should consider updating their solicitation, distribution, posting, and workplace attire policies to ensure compliance with the NLRA and consistent enforcement. Employers should also and consider updating or training supervisors regarding company policies for identifying and dealing with a union organizing campaign.

FMLA: Who's your Daddy... or your Mommy for that matter?

By Patrick M. Watts

On June 22, 2010, the Deputy Administrator of the Wage and Hour Division of the Department of Labor issued Interpretation No. 21010-3, clarifying the definition of “son or daughter” pursuant to the Family Medical Leave Act (“Act”). The Act entitles employees to take family medical leave for up to 12 weeks after the birth of a son or daughter, the placement of a son or daughter due to adoption or foster care or to care for a son or daughter with serious health conditions. “Son or daughter” is defined as “a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. . . .” The Act further defines in loco parentis as including all individuals responsible for the daily care and financial support of the child.

The Deputy Administrator concluded that an employee stands in loco parentis to a child if they intend to assume the daily care or financial support for the child. Further, the Deputy Administrator concluded that the “Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA.” Consequently, employers should recognize that some employees may be considered “parents” even though a son or daughter has an existing relationship with a biological, adoptive, foster or step parent.