As Election Day approaches, Texas employers may face a number of different questions regarding employees taking time off to vote. Here, we answer some frequently asked questions in this area.

1.  Are Texas employers required to provide employees time off to vote?

Yes, in certain circumstances. Under Texas law, an employer must allow an employee to be absent from work on Election Day to vote, unless the polls are open on election day for two consecutive hours outside the employee’s working hours.[1] In Harris County, for example, polls will be open from 7:00 a.m. to 7:00 p.m.[2] Thus, employees who are scheduled to work 8:30 p.m. to 5:30 p.m. must be allowed time off to vote, or a modified schedule for Election Day.

Note that leave is only required if the employee does not have two consecutive hours to vote when polls are open on Election Day. Employees are not entitled to statutory voting leave to vote during early voting. Employers can recommend that their employees vote early, but if an eligible employee waits until Election Day to vote, an employer cannot fault the employee for taking time off to vote.

2.  Are employers required to pay eligible employees for time off taken to vote on Election Day?

Generally, yes. If an employee is entitled to take time off to vote on Election Day (see #1 above), the employer cannot penalize the employee (or threaten to penalize the employee) for attending the polls to vote.[3] In this context, an illegal penalty could include a reduction in pay or other employment benefit.[4] Thus, eligible employees’ time off to vote on Election Day is paid leave. And employer-provided PTO or vacation time cannot be run concurrently with voting leave.

Under Texas Attorney General opinions,[5] the time off must be paid to the extent it cuts into the employee’s normal working hours. Thus, in the example under #1 above, it appears that the employer might provide the employees 30 minutes of leave at the beginning or end of their shift, thus allowing them a two-hour block to vote.

Generally, the rate of pay for voting leave is the same as if the employee spent the time working. Thus, if the time is taken off from mandatory overtime, the time off should be paid at the overtime rate.[6] If, however, the time was taken off from option overtime voluntarily requested by the employee, the employer is not required to pay for the time off, since the time would be considered outside normal working hours and is time the employee chose to spend working rather than voting.[7]

3.  Should an employer ask its employees to reveal who they voted for?

No. It is illegal for an employer to reduce an employee’s pay or other employment benefits in retaliation for voting for or against a candidate or measure, or for refusing to reveal how the employee voted.[8] To avoid any claims that an employment decision was motivated by how the employee voted, or the employee’s refusal to say how he or she voted, an employer simply shouldn’t ask employees how they voted.

Texas employers should keep these FAQs when planning for Election Day. Some employees’ schedules may need to be modified or rearranged to allow them sufficient time to vote. To avoid potential claims, employers should generally refrain from asking employees how they voted.

[1] Tex. Elec. Code § 276.004(a)(1), (b).

[2] See Election Day Polling Locations List, https://www.harrisvotes.com/Docs/VotingInfo/PollingLocations_en-US.pdf (last visited Oct. 12, 2020).

[3] Tex. Elec. Code § 276.004(a)(2).

[4] Id. § 276.004(c).

[5] See Voting – Time Off, https://www.twc.texas.gov/news/efte/voting_time_off.html#:~:text=Let%20employees%20have%20at%20least,hours%20(V%2D1532) (last visited Oct. 12, 2020).

[6] See id.

[7] See id.

[8] Tex. Elec. Code § 276.001(a)(2).